

























































































































































































































































































































































































































































































































































































































































































































THE HIGHWAY LAW 


OF NEW YORK STATE 

CHAPTER XIX OF THE GENERAL LAWS 

(Laws 1890, Chap. 568.) 


TOGETHER WITH ALL OTHER STATUTES OF 
THE STATE, GENERAL AND‘MIS¬ 
CELLANEOUS, RELATING 
TO THE SUBJECT OF 
HIGHWAYS. 


ANNOTATIONS AND FORMS. 


Edited by 

H. NOYES GREENE, 

(Of the Troy Bar.) 

Author of “Practice Time Table,” “Taw of Taxable Transfers,” and 
“Taw of Negotiable Instruments.” 


ALBANY, N. Y. 

MATTHEW BENDER, PUBLISHER, 
511-513 Broadway. 

1898. 







Entered according to act of Congress, in the year eighteen hundred and ninety-eight, 

By MATTHEW BENDER, 

In the office of the Librarian of Congress at Washington. 


PRESS OF WILLIAM BOYD, 
ALBANY, N. Y. 


0 ^- 1703 $ 


V#* OWE OF 

C 

- 6 1898 

of 

TWO COPIES RECEIVED. 

y ■!: %R\-r 

... 












PREFACE. 


Before the passage of the general Highway Act of 1890, 
the law of this state in regard to highways was a confused 
and conflicting mass of Revised Statute provisions, inde¬ 
pendent general statutes and special acts. The legislature, 
by its attempt to codify all these into one act, accom¬ 
plished a great deal in the way of simplification and 
elimination, but it failed to be thorough, leaving a num¬ 
ber of statutes still standing upon their own foundations 
as highway laws. Succeeding legislatures have served 
only to complicate matters further by a seeming disregard 
of Chapter XIX of the General Laws in their enactments. 
Moreover, many of the special acts passed both before 
and since the year 1890, applicable only under certain 
conditions of population and location, have no place in a 
general highway act; while other provisions of law, 
though pertinent to the'subject of highways, belong more 
properly and are found in the various chapters of the 
general laws. 

To gather all these widely scattered parts into one 
comprehensive whole, has been the endeavor of the editor 
in the preparation of this volume. While the Highway 
Law proper has received the more careful treatment, in 
that it has been exhaustively annotated in all its parts, 
yet it is believed that no one provision of any unrepealed 
statute has escaped notice and insertion in that part of 
the book called the Appendix, with references thereto 
wherever necessary in the body of the work. 

Being finished, the book, if good for anything at all, 
should be equally useful to both lawyer and layman. To 
the former, it should be an aid in showing the interpreta- 



IV 


The Highway Law of Hew York. 


Preface. 


tion given by the courts to each part of the statute; to the 
latter, it should be a compendium of their rights and 
duties in relation to highways, whether they be officials 
charged with the care thereof or mere travelers thereon. 
That such a degree of excellence has been attained, how¬ 
ever, is for the reader, not the editor, to determine. 

In the digesting of more than one thousand court 
decisions, acknowledgment should be made of valuable 
assistance rendered by Mr. Andrew P. McKean of the 
Troy bar. The forms have been carefully selected from 
those most approved by long usage. 


Troy, N. Y., June 1, 1898. 


H. N. G. 




TABLE OF CONTENTS. 


Page 

Table of Cases Cited . xiii 

The Highway Law... 1 

ARTICLE I. 

Highway officers, their general powers and dutifes. 1 

Section 1. Short title. 2 

2. Treasurer of highway commissioners. 2 

3. Powers of one commissioner. 3 

4. General powers of commissioners. 3 

5. Mile-stones and guide-boards. 9 

6. Road machines and implements. 10 

7. Stone-crushers and materials. 12 

8. Custody of stone-crushers. 13 

9. Additional tax. 13 

10. Extraordinary repairs of highways or bridges. 14 

11. Auditing expense thereof. 15 

12. Accounts, how made out.. 16 

13. Unsafe toll-bridge. 17 

14. Drainage, sewer and water pipes in highways. 18 

15. Actions for injuries to highways. 19 

16. Liability of towns for defective highways. 20 

17. Action by town against commissioners. 26 

18. Audit of damages without action. 27 

19. Reports of commissioners. 28 

20. General duties of overseers. 29 

21. Opening obstructed highways. 30 

22. Penalties against overseers. 31 

23. Penalties, how collected. 32 

24. Compensation of overseers. 33 

25. Division of ‘town into highway commissioner dis¬ 

tricts. 33 

26. Duties of commissioner in each district. 34 

(V) 
































VI 


The Highway Law of New York. 


Table of contents. 


ARTICLE II. 

Page 

Assessment for highway labor. 35 

Section 30. Meetings of commissioners. 36 

31. Lists of inhabitants. 36 

32. Non-resident lands. 36 

33. Assessments of highway labor, how made. 37 

34. Copies of lists delivered to overseers. 40 

35. Names omitted. 41 

36. Appeals by non-residents. 41 

37. Credit on private roads. 42 

38. Certain assessments to be separate. 42 

39. Tenant to deduct assessment. 42 

40. Reassessment in case of neglect... 43 

41. Omissions of assessors corrected. 43 

42. New assessments by overseers. < . 48 

43. Sidewalks and trees.. . 44 

44. Abatement of tax for shade trees. 45 

45. Sidewalk tax anticipated. 46 

46. Certificate of anticipation. 46 

47. Transfer of certificate.. 47 

48. Abatement of tax for watering trough. 47 

49. System of taxation defined. 48 

50. Town may change its system. 48 

51. Vote thereon. 43 

52. When change to take effect. 48 

53. Annual tax under money system; certain villages 

exempt therefrom. 49 

54. (Adoption of county road system.). 50 

55. (County engineer.). 54 

53. (Expenses, how paid.). 54 

57 (Issue of bonds, etc.). 52 

58. (County roads under charge of supervisors and 

county engineer.). 52 

59a. (Proceeds of county bonds.). 53 

ARTICLE III. 

The duties of overseers of highways, and the performance of high¬ 
way labor 


54 






































The Highway Law of New York. vii 


Table of contents. 


Page 

Section 60. Notice to work. 54 

61. Notice to non-residents. ... 55 

62. Commutation. 55 

63. Teams and implements. 56 

64. Substitutes. 57 

65. Penalties for neglect to work or commute. 57 

66. Assessment for unperformed labor. 58 

67. Penalty for refusal of overseer to provide list. 59 

68. Collection of arrearages for unperformed labor. 59 

69. Annual return of overseers. 60 

70. Noxious weeds in highway.!. 61 

71. Overseers to notify occupant to remove weeds. 61 

72. Abatement of tax for removal of fence. 62 

73. Abatement of tax for street lamps. 62 

74. Rebate of tax for using wagon tires of certain width 63 

ARTICLE IV. 

Laying out, altering and discontinuing highways and laying 

out private roads. 64 

Section 80. Highways by dedication. 65 

81. Survey. 71 

82. Application. 73 

83. Application for commissioners. 73 

84. Appointment of commissioners, and their duties- 75 

85. Notice of meeting. 77 

86. Decision of commissioners in favor of application- 78 

87. Damages in certain cases, how estimated. 81 

88. Decision of commissioners denying application. 83 

89. Motion to confirm, vacate or modify. 83 

90. Limitation upon laying out highways. 87 

91. Laying out highways through burying grounds. 91 

92. Costs, by whom paid . 92 

93. Damages assessed, and costs to be audited. 92 

94. When officers of different towns disagree about high- 

•s 

way . 91= 

95. Difference about improvements. 95 

96. Highways in two or more towns. 97 


































The Highway Law of New York. 


Table of contents. 


Page 

Section 97. Laying out, dividing and maintaining highway 

upon town line. 97 

98. Final determination, how carried out. 99 

99. Highways abandoned. 99 

100. Highways by use. 101 

101. Fences to be removed. 113 

102. Penalty for falling trees. 114 

103. Fallen trees to be removed. 114 

104. Penalty for obstruction or encroachment. 114 

105. How removed, and liability for not removing. 118 

106. Private road ... 124 

107. Jury to determine necessity, and assess damages_125 

108. Copy, application and notice delivered to applicant.. 125 

109. Copy and notice to be served. 125 

110. List of jurors.'.. 126 

111. Names struck off. 126 

112. Place of meeting. 126 

113. Jury to determine and assess damages. 127 

114. Their verdict. 127 

115. Value of highway discontinued. 128 

116. Papers to be recorded in the town clerk’s office. 128 

117. Damages to be paid before opening the road. 128 

118. Fees of officers. 129 

119. Motion to confirm, vacate or modify. 129 

120. Costs of new hearing... 130 

121. For what purpose private road to be used. 130 

122. Highways or roads along division lines. 131 

123. Adjournments. 131 

ARTICLE V. 

Bridges. 132 

Section 130. When town or county expense . 132 

131. Additional county aid. 135 

132. Statement of expenses. 136 

133. Supervisors to levy tax. 136 

134. Joint liabilities of towns, and their joint contracts... 136 

135. Refusal to repair. 13 g 

136. Proceedings in court. 139 





































The Highway Law of New York. ix 


Table of contents. 


Page 

Section 137. Commissioners to institute proceedings. 140 

138. Their duty. 140 

139. Commissioners to report. 141 

140. Appeals. 141 

141. Power of court on appeal. 141 

142. Refusal to repair bridge.142 

143. Penalty, and notice on bridge. 143 

144. Offence.. .. 143 

145. Iron bridges..143 

ARTICLE VI. 

Miscellaneous provisions. 144 

Section 150. Papers, where filed. 144 

151 - When commissioners do not act.145 

152. Costs on motion. 145 

153. Injuries to highways. 145 

154. When town not liable for bridge breaking. 147 

155. Steam traction engines on highway. 147 

156. Trees, to whom they belong. 148 

157. Carriages meeting to turn to the right. 149 

158. Intemperate [drivers not to be engaged. 151 

159. Drivers, when to be discharged. 152 

160. Leaving horses without being tied. 152 

161. Owners of certain carriages liable for acts of 

drivers. 153 

162. Term “carriage” defined. 153 

163. Entitled to free use of highways. 154 

164. Penalties, how recovered. 155 

165. *Extent of this chapter. 

165. Stone and rubbish not to be dumped in highways... 156 

ARTICLE VII. 

Regulation of ferries. 157 

Section 170. Licenses. 157 

171. Undertaking. 160 


* So in the original. 


































X 


The Highway Law of New York. 


Table of contents. 


Page 

Section 172. Appendages for rope ferries... 160 

173. Superintendent of public works may lease right of 

passage. 160 

174. When schedules to be posted.,. 161 

ARTICLE VIII. 

t 

Repealing and other laws. 163 

Section 180. Laws repealed. 163 

181. Saving clause. 163 

182. Construction. 164 

183. When to take effect. 164 

Schedule. 165 

Appendix. 169 

General Laws :. 171 

Constitution. 171 

Code of Civil Procedure. 174 

County Law. 193 

Town Law. 205 

Village Law. 218 

Transportation Corporations Law.235 

Navigation Law. 260 

Canal Law. 265 

Railroad Law. 271 

Indian Law. 275 

Miscellaneous Laws :. 278 

Laws 1817, ch. 83. 278 

Laws 1835, ch. 300. 279 

Laws 1853, ch. 62. 279 

Laws 1862, ch. 220. 281 

Laws 1869, ch. 131. 281 

Laws 1870, ch. 311 . 283 

Laws 1871, ch. 171. 284 

Laws 1879, ch. 317. 285 

Laws 1881, ch. 344. 286 

Laws 1883, ch. 113. 287 

Laws 1890, ch. 291. 9QQ 





































The Highway Law of New York. xi 


Table of contents. 


Page 

Laws 1890, ch. 332. 291 

Laws 1890, ch. 555 . 292 

Laws 1891, ch. 309. 301 

Laws 1893, ch. 239. 302 

Laws 1893, ch. 419. 304 

Laws 1893, ch. 582. 305 

Laws 1893, ch. 607 . 311 

Laws 1893, ch. 655 . 314 

Laws 1894, ch. 266 . 315 

Laws 1895, ch. 499 . 317 

Laws 1895, ch. 611. 320 

Laws 1895, ch. 717.....321. 

Laws 1896, ch. 309 . 322 

Laws 1896, ch. 423. 324 

Laws 1896, ch. 464 . 325 

Laws 1897, ch. 269. 326 

Laws 1897, ch. 286. 328 

Laws 1897, ch. 481. 342 

Laws 1897, ch. 483. 344 

Laws 1897, ch. 596. 346 

Law's 1893, ch. 45. 349 

Laws 1898, ch. 71. 351 

Laws 1898, ch. 102. 353 

Laws 1898, ch. 115. 354 

Law's 1898, ch. 133. 361 

Laws 1898, ch. 224. 362 

Laws 1898, ch. 277. 367 

Forms. 369 


Index 


































TABLE OF CASES CITED 


A. 

Page 

Abbott v. Cottage City. 66 

Adams v. Rivers. 117 

v. R. R. Co. 102 

Adler v. Metropolitan Ry. Co. 109 

Allen v. Buffalo, &c. Co. 19 

v. Northville . 72 

Alpaugh v. Bennett. .105, 122 

American Bank Note Co. v. N. Y. Elevated R. R. Co. 109 

Amsbry v. Hinds. 100 

Anderson v. Van Tassel. 30 

Astor v. New York. 82 

Atkinson v. Oelsner. 150 

Ausable Co. v. Hargraves. 105 

B. 

Babcock v. Gifford. 22 

v. Lamb. 76, 105 

v. N. Y. C. R. R. Co. 26 

Baker v. Braman. 124 

v. Oneonta. 71 

Baldwin v. Buffalo. 80 

Ballard v. Dyson. 102 

Bank of Ithaca v. King. 40 

Barker v. Loomis.8, 15, 23, 24 

v. Oswegatchie. 134 

v. Railroad Co. 150 

v. Savage. 150 

Barnes v. New York. 93 

Bartlett v. Crozier .4, 30, 32 

Bateman v. Black. 102 

Baumann v. Gilmour. 151 

Bayard v. Healy. 40 

Baylis v. Roe. 122 

(xm) 


































xiv The Highway Law of New York. 

Table of cases cited. 


Page 

Beardslee v. Dolge. 86 

Beck v. Carter. 117 

Becker v. Metropolitan Ry. Co. 109 

Beckwith v. Whalen... 68, 138, 140 

Beekman v. Railroad Co. *103 

Belton v. Baxter. 150 

Benedict v. Calkins . 89 

v. Goit.,. 102, 103, 111, 123 

Bentley v. Phelps. 7 

Berlin Bridge Co. v. Wagner. 14, 15, 29, 131, 134, 135 

Betts v. Williamsburgh. 82 

Bidelman v. State. 20 

Bidwell v. Town of Murray.21, 22, 24 

Birge v. Berlin Iron Bridge Co... 8, 14 

Birket v. Knickerbocker Ice Co. 150 

Bisbee v. Mansfield. 122 

Bisclioff v. N. Y. Elevated R. R. Co.109, 110 

Bishop v. Barton. 4, 135 

Blackman v. Riley. 101 

Blanchard v. Hoboken Land & Improvement Co. 162 

Blashfield v. Tel. & Tel. Co. 110 

Bliss v. Johnson.. 45 , 107 , 115 

v. Schaub . 116 

Bogart v. New York. 86 

Bohm v. Metropolitan Ry. Co. 109 

Bookman v. N. Y. Elevated R. R. Co. 110 

Boots v. Washburn.8, 15, 131 

Borries v. Horton. 120 

Borst v. Town of Sharon. 23 

Bouton v. Brooklyn. 73 

v. Neilson. 5 g 

Brace v. N. Y. C. R. R. Co. 101 , 102 

Bradley v. Blair.116, 121, 155 

Bresky v. Railroad Co. 151 

Brick Co. v. Haverstraw. 70 

Bridge Co. v. Barnett. 131 

Briggs v. Doughty. 119 , i 20 









































The Highway Law of Hew York. 


xv 


Table of cases cited. 


Page 

Brinkman v. Eisler . 118 

Brodhurst v. Turnpike Co. 82 

Broezel v. Brooklyn. 71 

Broiestadt v. Railroad Co. 108 

Brooklyn v. Meserole... 86 

v. Nassau R. R. Co. 112 

Brooks v. Schwerin. 150 

Bronson v. Mann. 119 

Bruner v. Lewis. 15 

Brush v. Manhattan Ry. Co. 109 

Bruyn v. Graham... 72 

Bryan v. Landon. 23 

Bryant v. Town of Randolph.4, 19, 21, 24, 109 

Bucholz v. Railroad Co.19, 71 

Buckley v. Drake.76, 81 

Buell v. Lockwood. 85 

Buffalo v. Hoff eld.100, 101 

Buffalo Plank Road Co. v. Commissioners of Highways. 39 

Buhrens v. Railroad Co. 150 

Bullard v. Harrison. 112 

Bullock v. Town of Durham.22, 26 

Burns v. Yonkers.21, 24 

Buyce v. Buyce. 131 

Byrne v. Knickerbocker Ice Co. 151 

C. 

Cadwell v. Arnheim. 149 

Callanan v. Gilman. .115, 117 

Canal Appraisers v. People. 106 

Bank v. Albany.81, 82, 87 

Commissioners v. People. 106 

Carpenter v. Cohoes.25, 26 

v. Railroad Co. 108 

Carrisv. Commissioners.77, 90 

Cary v. Marston. 36 

Case v. Thompson. 78, 93, 114, 120 

Case of Irondequoit and Penfield. 140 

Caven v. City of Troy.. 104 








































xvi The Highway Law of New York. 

Table of cases cited. 


Page 

Cemetery v. Railroad Co. 106 

Central Park Case. 70 

Chamberlain v. Taylor. 40 

Chapman v. Gates. 75, 78, 81, 115 

v. R. R. Co. 108 

v. Swan.71, 104 

Cheney v. Railroad Co... 106 

Christy v. Newton. 71, 100, 120, 122 

Church y. Railroad Co. 108 

City of Cohoes v. D. & H. C. Co.. 66 , 68 , 104 

City of Utica v. Utica Telephone Company. 110 

Clapp v. Town of Ellington. 21, 23, 26,138 

Clapper v. Town of Waterford. 21, 23, 24, 26, 45 

Clark v. Miller. 81 

v. Phelps...... 84, 89 

v. Stillman. 81 

Clarke v. Crimmins. 117 

Clements v. West Troy. 66 , 72 

Cleveland v. Cleveland. 112 

Colden v. Thurber. 105 

Cole v. Van Keuren. 5, 105 

Coles v. Williamsburgh. 79 

Colman v. Shattuck. 37,41, 59, 60 

Commissioners v. Claw. 84 

v. Judges. 81, 87, 90 

v. Kempshall. 106 

v. Meserole. 73 

v. Peck. 8 , 121, 155 

v. Van Allen.119, 122 

Conkling v. Phoenix Mills. 103 

Cook v. Covil.119, 120 

v. Harris. 66 , 67, 119 

v. N. Y. Elevated R. R. Co. 110 

Cooper v. Bean. 79, H 4 ) 117 

Corbett v. Troy. 102 

Corey v. Rice.137, 139 

Corning v. Gould. 100 










































The Highway Law of New York. xvii 

Table of cases cited. 


Page 

Cortelyou v. Van Brunt. 105 

Cotanch v. Grover. 4, 30 

Cousins v. Carncross. 22 

Coutant v. Gatlin. 80 

Cowan v. Snyder. 150 

Coykendall v. Durkee. 124 

Crabtree v. Otterson. 150 

Craig v. Railroad Co.108, 110 

v. Supervisors.128, 130 

Crain v. Fox. 100 

Cunningham v. Fitzgerald. 70 

Curry v. Buffalo. 23 

Curtis v. Keesler. 103 

Cuyler v. Rochester. 71 

D. 

Darker v. Beck. 107 

Davis v. Kallfelz. 152 

v. Mayor.106, 115 

Day v. Day.60, 137, 138 

De Camp v. Thomson. 68, 103 

Deuning v. Roome. 66, 105 

De Peyster v. Mali . 10l 

Detnold v. Drake. 106 

Deveupeck v. Lambert. 104 

De Witt v. Van Schoyk. 107 

Dexter v. Alfred. 80 

v. Broat. HI 

v. Riverside Mills. 107 

Disosway v. Winant. 86 

Dominick v. Hill. 72, 119 

Donnelly v. Brooklyn. ”1 

Dorn v. Town of Oyster Bay. 21, 23 

Doughty v. Brill. 122 

Drake v. Rogers. 84, 114, 115, 122, 124, 125, 131 

Driggs v. Phillips. 68, 100, 115, 119 

Drucker v. Manhattan Ry. Co. 109 








































XVI11 


The Highway Law of New York. 


Table of cases cited. 


Dudley v. Bolles . 
Duntz v. Duntz.., 
Durant v. Lipsius 
Duryea v. Smith.. 
Dygert v. Schenck 


E. 

Earing v. Lansing. 

Eckerson v. Haverstraw. 

Edwards v. Ford.. 

Edsall v. Howell. 

Eelsy v. American T. & T. Co. 

Egerer v. Railroad Co. 

Elwood v. Rochester. 

Engleman v. Longhorst. 

Ensign v. Barse. 

v. Supervisors. 

Etz v. Daily. 

Eveleigh v. Hounsfield. 

Evers v. Hudson River Bridge Co. 

Excelsior Brick Co. v. Haverstraw. 

Ex parte Albany . 

Central Park. 

Clapper. 

Commissioners. 

Department of Parks. 

Department of Public Works 

DeWint. 

Jennings.'.... 

Kerr. 

Manhattan Co. 

Sanders. 


F. 

Falvey v. Bridges. 

Farm an v. Town of Ellington. 

Farrell v. New York. 

Fash v. Railroad Co. 


Page 

. 149 

. 121 

. 150 

. 4 

26, 116, 117, 123, 135 


.149, 150 

. 67 

. 137 

. 45, 148, 163 
110 

... 69, 108 
71, 82, 83, 90 
.... 72, 81 

.... 37, 40 

.... 25, 135 
124 
23 
26 
71 


. 82 

. 68, 85 

. 89 

68, 76, 80, 85, 87, 140 

. 80 

. 79 

. 80 

. 103 

. 91 

. 71 

. 86 


.100, 106 

4, 21, 25, 30, 44 

.116, 118 

110 







































The Highway Law of New York. 


xis 


Table of cases cited. 


Page 

Fearing v. Irwin. 69, 70 

Fellows v. Denniston. 40 

Fettrick v. Dickenson. 112 

Fisher v. Cambridge . 117 

v. New York. 80 

v. Richardson. 107 

Fishkill v. Plankroad Co... 21 

Fitch v. Commissioners. 71, 119, 120 

Flack v. Green Island. 104 

Fleet v. Youngs. 116, 121, 124 

Fletcher v. Railroad Co. 108 

Flood v. Van Wormer .121, 122 

Flynn v. Hurd.137, 138 

v. Railroad Co. 117 

v. Taylor.115, 117 

Fobes v. Railroad Co. 109 

Foels v. Town of Tonawanda. 21 

Foot v. Stiles. 71 

Ford v. Nichols. 117 

Fowler v. Lansing. 130 

v. Mott. 89, 102, 103, 111, 122 

v. Westervelt. 36, 37, 40, 56 

Fraser v. Freeman. 153 

Frasier v. Town of Tompkins. 26 

Freeholders v. Glen and Florida. 101 

Freel v. County of Queens. 8 

Freeman v. Cornwall. 58 

Friedlander v. D. &. H. C. Co.*.117, 124 

Fuller v. Redding. I 55 

Furman v. Taylor. 8 

G. 

Gailor v. Herrick. 21 

Galatian v. Gardner. 104 ’ 1° 5 

Gale v. Railroad Co. 1° 9 

Garlinghouse v. Jacobs. ; . 24, 131 

Gaslight Co. v. Calkins. m 








































XX 


The Highway Law of New York. 


Table of cases cited. 


Gedney v. Earl. 

Genet v. Brooklyn. 

Getty v. Hamlin. 

Ghiglione v. Marsh. 

Gilbert v. Havemeyer. 

Glasier v. Town of Hebron 

Gould v. Booth. 

v. Glass. 

Grauger v. Syracuse. 

Graves v. Otis. 

Gray v. Manhattan Ry. Co 

Greenberg v. Kingston_ 

Griffith v. McCullum. 

Guest v. Brooklyn.. 

Gulliver v. Blauvelt. 


H. 


Haberman v. Baker_ 

Haden v. Clarke. 

Haight v. Littlefield... 
Hallock v. Woolsey.... 
Hampton v. Hamsher.. 

Hand v. Klinker. 

Hannersly v. New York 

Hannon v. Agnew. 

Harlow v. Humiston... 

Harpell v. Curtis. 

Harriman v. Howe. 

Harrington v. People.. 

Harris v. Houck. 

v. Whitney. 

Harrower v. Ritson_ 

Hathaway v. Jenks_ 

Havermans v. Troy.... 
Hawkins v. Rochester.. 
Hawxhurst v. Mayor... 
Hayward v. Mayor. 


Page 

. 106 

. 79, 83 

. 24, 25, 137 

. 14 

. 82 

. 21, 24 

. 23 

4, 69, 73, 90, 121, 155 

. 80 

. 4, 123 

. 110 

. 117 

. 123 

. 86 

. 152 


. 106 

. 117 

. 107 

. 72 

. 40, 43 

. 117 

. 106 

. 26 

.105, 112 

. 149 

.104, 105 

73, 89, 90, 104 

.137, 139 

. 87 

. 123 

.119, 120 

. 73 

. 70 

. 139 

. 103 







































The Highway Law of New York. xxi 

Table of cases cited. 


Page 

Haywood v. Wheeler. 7 

Heacock v. Sherman. 26 

Heath v. Barman.101, 103 

Hegan v. Railroad Co.112, 150 

Henderson v. Knickerbocker Ice Co. 150 

Hergert v. Union Ry. Co. 151 

Herrick v. Stover. 90, 127, 130 

Herrington v. Phoenix. 26 

Hibbard v. R. R. Co. 153 

Hickok v. Trustees. 103 

Hicks v. Chaffee. 22 

Higgins v. Reynolds. 106 

Hill v. Supervisors. 14 

Hines v. City of Lockport. 24 

v. Hamburger. 104 

Hoey v. Gilroy.116, 118 

Holdame v. Cold Spring. 66 

Holloway v. Delano. 70 

v. Southmayd. 107 

Horey v. Haverstraw.*. 100 

Houghtaling v. Shelley. 117 

Hover v. Barkhoof. 22, 24 

Huber v. Nassau R. R. Co. 151 

Hudson River Telephone Co. v. Watervliet Ry. Co... HO 

Huggans v. Riley.131, 134 

Hughes v. Bingham. 21, 68 

v. Metropolitan Ry. Co. 109 

v. N. Y. Elevated R. R. Co. 109 

Hunt v. Fitchburg R. R. Co. 112 

Hunter v. Trustees. 63 

Hyatt v. Bates. 121 

I. 

In re Howland Bridge. 195 

Ins. Co. v. Stevens. 69 

Ireland v. Plank Road Co. HI 

Isaacs v. Railroad Co. 153 

Iselin v. Starin. 67 

Ivory v. Town of Deerpark.5, 8, 22, 25, 105 









































xxii The Highway Law of New York. 

Table of cases cited. 


Page 

J. 

Jackson v. Hathaway. 44 

James v. Sammis... 5 , 104, 120, 122 , 124 

Jennings v. Bates. 128 

v. Van Schaick. 118 

Johnson v. Friel. 117 

v. Loveless. 72 

Johnston v. Supervisors. 79 

Jones v. N. Y. Elevated R. R. Co. 110 

v. City of Utica.. 26, 99 

K. 

Kane v. N. Y. Elevated R. R. Co. 109 

Kearney v. Metropolitan Ry. Co. 109 

Kellinger v. Railroad Co. 110 

Kelly v. Horton. 73 , 123 

Kelsey v. Burgess.5, 73, 104 

v. King. 107 

Kennedy v. Troy. 86 

Kernochan v. N. Y. Elevated R. R. Co. 109 

Kerr v. Hammer. 120 

v. Joslin. 25 

Ketchum v. Edwards. 124 

Kiernan v. Newton. Hg 

King v. Brooklyn. 77 

v. Reed. g 4 

Tr °y. ns 

Kline v. Hibbard. jqq 

Koester v. Decker. 150 

L. 

Lahr v. Metropolitan Ry. Co. 109 

Lambert v. Hoke. 130 

Lament v. Haight. 22 

Lancaster v. Richardson. 123 

Lane v. Cary. 120 

v. Town of Hancock. 21, 24 

v. Wheeler. 23 






































The Highway Law of New York. 


XXlll 


Table of cases cited. 


Page 

Langlois v. Cohoes. 26 

Lansing v. Caswell. 89 

v. Wiswall.105, 121 

Lapham v. Rice. 137 

Lavery v. Hannigan.116, 118 

Lawrence v. New York. 70 

Lawson v. Woodstock. 22 

Lechner v. Village of Newark. 155 

Ledyard v. Ten Eyck. 102 

Lee v. Sandy Hill. 67 

Le Roy v. New York. 85 

Lewis v. Railroad Co. 105 

Little v. Denn. 116 

Livingston v. New York. 80, 82, 107 

Lord v. Atkins. 107 

Loudoun v. Railroad Co. 150 

Lowell v. Railroad Co. 109 

Lowerre v. New York. 83 

Lozier v. Railroad Co. 108 

Ludlow v. Oswego. 100 

Lyon v. Munson... 101 


M. 


Mackey v. Locke. 22 

Maginnis v. Brooklyn. 26 

Mahon v. Railroad Co. 108 

Mali v. Lord. 153 

Manger v. Harrison. 116 

Mann v. Worrall. 106 

Marble v. Whitney. 66, 72, 73, 89, 101 

Mark v. West Troy. 104 

Markey v. County of Queens. 25, 135 

Martin v. Brooklyn . 70 

Marvin v. Pardee. 122 

Mather v. Crawford. 15, 131 

Matter of 17th St. 107 

127th St. 80 







































XXIV 


Tiie Highway Law of Hew York. 


Table of cases cited. 


Page 

Matter of 138th Street. 83, 85 

163rd Street. 87 

181st Street. . 80 

Albany Street. 69, 74, 82, 85 

Alexander Avenue. 91 

Amsterdam. 83 

Anthony Street. 70 

Art Street. 78 

Barclay. 69, 70 

Barrett. 95 

Beach Ave. 67 

Beekman Street. 70, 87 

Board of Street Opening. 91 

Broadway. 94 

Buffalo. 77 

Burns. 68, 103 

Bushwick Avenue. 71, 85 

Carlton Street. 86 

Carpenter. 85 

Cedar Park. 82 

Church Street. 71, 82 

City of Buffalo.106, 108 

City of Rochester. 80 

Coe. 76, 79, 85 

Commissioners. 7 I 

Commissioners of Glen & Florida. 140 

Commissioners of Public Parks. 82 

De Camp. 86, 130 

Degraw Street. 82 

Department of Public Works. 80 

Dover Street. 85 

Dower Street. 70 

Eleventh Avenue. 76, 80, 82, 83, 85 

Elmwood Avenue. 70 

V 

Emmons Avenue. 85 

Extension of Ethel St. 67, 71 

Feeney. 79, 85, 86, 90 










































The Highway Law of New York. 


xxv 


Table of cases cited. 


Page 

Matter of Ferris. 70 

Flatbush Avenue. 108 

Flushing Avenue. 82 

Folts Street. 91 

Four-Corner Road. 90 

Fourth Avenue. 82 

Freeholders of Montezuma. 138 

Freeholders of Owasco. 135 

Furman Street. 79, 80, 85 

Glenside Woolen Mills. 84 

Hamilton Avenue. 108 

Hand Street. 69, 85, 104 

Harman Street. 85 

Henry Street. 85 

Highway at Tappan. 87 

Houston Street.. 75 

James. 87, 89, 90 

John Street. 76, 79, 82, 85, 106 

Kingsbridge Road. 86 

Lexington Avenue.. 70, 87, 94, 101 

Livingston Street. 82 

Main Street. 81 

Middletown. 76 

Miller. 93 

Mt. Morris and Castile. 149 

Mt. Morris Square. . 85 

Munson. 80, 82 

Newland Avenue. 76, 78 

New York. 82 

Ninth Avenue. 99 

North Third Avenue. 71 

Oakley Avenue. 85,90 

Ogden Street. 76 

Opening of Beck Street. 9<, 100, 101 

Opening of Rogers Avenue. 71 

Orange Street.* • • 74 

Pacific Street. • * .. 85 












































XXVI 


The Highway Law of New York. 


Table of cases cited. 


Page 

Matter of Pearl Street. 81, 85 

Pierce. 80 

Pugh. 76, 85 

Riverside Park. 82 

Rochester Railway Co. 109 

R. R. Co. 69 

Shawangunk Kill Bridge. 104 

Smiddy. 70 

Southern Boulevard. 75, 76, 85 

South Seventh Street. 72, 76, 85 

Spier. 140 

Spuyten Duyvil Parkway. 70, 74, 82 

Summit Street. 71 

Taylor & Allen. 86 

.« V ’*4 

the Terrace. 79 

Third Street. 85 

Town Board. 14 

Town of Hampton. 90 

Trustees of Olean. 105 

Twenty-ninth Street... 79 

Twenty-sixth Street. 75 

Union Avenue. 85 

Wall Street. 69 

Washington Park. 70, 86 

Washington Street. 71 

William Street. 78, 79, 80, 81, 82, 85 

Woolsey. 82 

Mayer v. New York. 73 

Mayor v. Railroad Co. HO 

McCaffrey v. Smith. 116 

McCamus v. Gaslight Co. 117 

McCarthy v. Syracuse. 107 

v. Whalen. 72, 73, 89, 102, 145 

McCormack v. Brooklyn. 71 

McCormick v. City of Amsterdam. 66 

McCruden v. Rochester Ry. Co.108, 148 

McDermott v. Conley. H 7 










































The Highway Law of New York. xxvii 


Table of cases cited. 


Page 

McFadden v. Kingsbury. 30, 33, 123 

McGean v. Metropolitan Ry. Co. 109 

McGuinness v. Town of Westchester. 26 

McMahon v. Town of Salem. 24 

McMannis v. Butler. 66 

McVee v. Watertown. 67, 100 

Merrill v. Brooklyn. 82, 86 

Metcalf v. Garlinghouse. 84 

Metropolitan Exhibition Co. v. Newton. 124 

Milhau v. Sharp .. 106, 107, 115 

Military Parade Ground. 70 

Miller v. Brown. 71 

v. Garlock. 104 

Mills v. Hall. 115 

Mitchell v. Metropolitan Ry. Co . 109 

v. White Plains. 80 

Moebus v. Herman.... 150 

Monk v. Town of New Utrecht. 22, 24 

Mooney v. N. Y. Elevated R. R. Co. 110 

v. Trow, &c. Co.149, 150 

Moore v. N. Y. Elevated R. R. Co.... 109 

v. Village of Fairport.123, 124 

Moran v. McClearne. 30 

Morey v. Town of Newfane. 21 

Morgan v. King.103, 112 

Morrison v. N. Y. Elevated R. R. Co. 107 

Mortimer v. Manhattan Ry. Co. 109 

Mott v. Clayton...105, 107 

v. Commissioners.119, 120 

v. Consumers’ Ice Co. 153 

v. New York. 100 

Munson v. Hungerford. 103 

Murphy v. Brooklyn. 102 

v. Orr. 15° 

Murray v. Graham. 

N. 

Naylo v. Glazier. l^ 4 









































XXV111 


The Highway Law of New York. 


Table of cases cited. 


Page 

Newman v. Ernst.149, 150 

v. Nellis. 123 

New York v. Colgate. 93 

v. Curran. 80 

v. Heuft. 124 

v. Wood. 118 

Nicoll v. Sands. 18, 112 

Noyes v. Chapin. 89 

O. 

Oakley v. Town of Mamaroneck. 23, 26, 137, 139 

Olendorf v. Sullivan. 120 

Olmstead v. Town of Pound Ridge. 23 

O’Neil v. Railroad Co.150, 151 

O’Rourke v. Hart. 125 

Orphan Asylum v. City of Troy.115, 116 

Osborne v. Union Ferry Co. 117 

Oswego y. Canal Co. 66 

Ottinger v. N. Y. Elevated Railroad Co. 109 

Overseers v. Overseers. 121 

Owners v. Albany. 81, 85 

P. 

Paine v. East. 124 

Palmer v. Larchmont Electrical Co. 44 , 107, 110 

v. Palmer. 67 

Pappenheim v. Metropolitan Ry. Co. 109 

Parker v. Van Houten. 121 

Patchen v. Town of Walton. 22, 24 

Patchin v. Brooklyn. 81, 86 , 90 

Patterson v. New York. 145 

Peard v, Karst. 117 

Peck v. Batavia. 4 

Peckham v. Anderson. 115 

People v. Adsit. 22 

v. Albright. 39 

v. Asten. 79 





































The Highway Law of New Yoke. xxix 


Table of cases cited. 


Page 

People v. Auditors of Esopus. . 21, 32 

v. Baker. 87 

v. Barbar. 87 

v. Barnes. 16, 28 

v. Board of Assessors. 70 

v. Board of Town Auditors. 22 

v. Boston & Albany R. R. Co. 91 

v. Brooklyn. 83 

v. Brown. 81, 87 

v. Burrell. 8,15 

v. Burton. 87 

v. Canal Appraisers.103, 106 

'v. Carman. 72, 77, 87 

v. Champion. 87 

v. Commissioners. 69, 70, 72, 86, 87, 89, 90, 128 

v. Commissioners of Greenbush. 127 

v. Common Council of Syracuse. 70 

v. Connor. 87 

v. Cortelyou. . 87 

v. Cortland.. 105 

v. County Court. 85 

&c. v. County Court. 99 

ex rel. R. R. Co. v. County Court. 86 

v. Cowles. 89 

v. Crosier. 87 

v. Dains. 81, 90 

v. Davis. 76 

v. Dettmer. 20 

v. Diver. 85, 90 

v. Dolge..76, 81, 86 

v. Eggleston. 73 

v. Eldridge. 81 

v. Ferris. 87 

v. Finger. 134 

v. Flagg. 134 

v. Fowler.104, 116 

v. Genge. 8 













































xxx The Highway Law of New York. 

Table of cases cited. 


Page 

People v. Goodwin. 85, 89 

v. Gray. 78 

v. Green. 74 

v. Greene. 70 

v. Griswold. 70 

v. Hall. 39 

v. Harris. 87 

v. Haverstraw. 87 

v. Heddon. 86, 87 

v. Hildreth. 86 

v. Horton. 89, 117 

v. Hudson. 131 

v. Hunting.122, 124 

v. Hynds. 71,89 

v. Ireland. 89 

v. Jones. 70, 84 

v. Judges. 5, 71, 85 

v. Keck. 73, 74, 97 

v. Kellogg. 67 

v. Kerr.106, 107 

v. Kingman. 89, 102, 105 

v. Kniskern. 77, 87 

v. Law. 106 

v. Lawrence. 84 

v. Lawson. 84, 105 

v. Lambier. 102 

v. Lewis. 81 

v. Loehfelm. 104 

v. Lohnas. 09 

v. May. 91 

v. McDonald. 09 134 

v. McIntyre. 14 

v. McNeil. 7 Q 

v. Meach. 134 

v. Melville. g 0 

Mills. 70, 73 

v. Mohawk Bridge Co. 22 









































The Highway Law of New York 


xxxi 


Table of cases cited. 


Page 

People v. Moore. 86, 89, 90, 130 

v. Hosier. 72, 74, 78, 99 

v. Mott. 77, 80 

v. Nash. 72, 86 

v. New York.118, 162 

v. Nichols. 70, 85 

v. N. Y. C. R. R. Co. 100 


v. Osborn. 78, 84, 104, 105 

v. Pierce. 41 

&c. v. Pierce. 40 

v. Pike. 70 

v. Plainfield. 87 

v. Potter. 76, 81 

v. Railroad Co. 106 

ex rel. Lovett v. Randall. 3 

v. Robertson. 87 

v. Robinson.81, 128, 130 

v. Schellenger. 81, 89 

v. Scott. 76, 90 

v. Sherman. 87 

v. Sly. 6 

y. Smith.15, 16, 77, 134 

ex rel. Slater v. Smith. 143 

v. Stedman. 78, 86 

v. Strevell. 87, 90 

v. Supervisors 8, 15, 21, 23, 69, 71, 73, 77, 79, 80, 81, 86, 93, 94, 97, 
103, 134, 136. 

ex rel. Bevins v. Supervisors. 92, 93 

ex rel. Everett v. Supervisors. 44 

ex rel. Keene v. Supervisors. 185 

ex rel. Root v. Supervisors. 135 

ex rel. Sammis v. Supervisors. 90 

ex rel. Scott v. Supervisors. 56 

v. See. 81 

v. Supervisors of Kings County. 86 

v. Sweet. 87 

v. Syracuse. 70, 76, 83 









































XXXll 


The Highway Law of New York. 


Table of cases cited. 


People v. Tallman. 

v. Talmadge. 

v. Taylor. 

v. Temple. 

v. Tliayer. 

v. Town Board. 

v. Underhill... 

v. Vail. 

v. Van Alstyne. 

v. Watertown.. 

v. Wend. 

v. White. 

v. Whitney. 

v. Whitney’s Point. 

v. Williams. 

Peters v. Carleton. 

v. Kendall. 

v. New York.. 

Phelps v. Hawley.;. 

Phillips v. Macedon. 

v. Schumacher. 

Pike v. Bosworth. 

Plank Road v. Railroad. 

Plant v. R. R. Co.. 

Pollock v. Morris. 

Pond v. Metropolitan Ry. Co. 

Porter v. Village. . 

Port Jervis v. National Bank . 

Post v. Hazlett. 

v. Ry. Co. 

v. West Shore R. R. Co.. 

Potter v. Benniss. 

Pratt v. People. 

Presbyterian Society v. Railroad Co 

Pugsley v. Anderson. 

Purroy v. Schuyler. 


Page 

78 

87 

.. 124, 127 
. 84, 89, 90 
.. 85, 86 

15, 16, 131 
66 
73 


84, 87, 102, 105 

. 87 

. 81 

. 81 

. 80, 86 

. 72, 78 


71, 120 
70 


... 103, 111 
71 

137, 139, 140 
26 


71, 90,119, 145 

..149, 150 

. 108 

.107, 108 

. 80 

. 109 

. 104 

. 117 

. 107 

. 104 

. 19 


58 

72 

106 

124 

128 








































The Highway Law of New York. 


XXXlll 


Table of cases cited. 


R. Page 

Radway v. Briggs. 102 

Railroad Co. v. Artcher.125, 126 

v. Brownell. 69, 91 

v. Brunnell. 91 

v. Greenbush. 91 

v. Kane. 82 

v. Kerr. 91 

v. Morrisania. 82 

v. Northern Turnpike Co. 108 

v. Railroad Co. 124 

v. Silverstone. 91 

v. Utica. 116 

v. Williamson. 91 

Railway Co. v. Supervisors. 40 

Ramsden v. Railway. 110 

Rankert v. Town of Junius. 25 

Rauenstein v. Railroad Co. 70 

Read v. Buffalo. 26 

Re Bogart’s Estate. 80 

Rector v. Clarke. 87 

v. Pierce. 23 

Rex v. County. 101 

Rexford v. Knight. 93, 103, 106 

Rex v. Lyon. 101 

v. Railway Co. 103 

Rhines v. Town of Royalton. 24 

Richardson, &c. Co. v. Barstow Stove Co. 117 

Rich v. Manhattan Ry. Co. 110 

Riker v. New York. 80 

Riley v. Town of Eastchester. 21, 26 

Rinehart v. Young. 36, 40, 41, 55, 58 

Roberts v. N. Y. Elevated R. R. Co. 109 

Robbins v. Gorham.*. 119 

Robinson v. Chamberlain. 103 

v. Fowler. 21 

v. Railroad Co. 108 











































XXXIV 


The Highway Law of New York 


Table of cases cited. 


Robinson v. Town of Fowler. 

Roe v. Elmendorf. 

Rounds v. Railroad Co. 

Rozell v. Andrews. 

Rue v. Sprague. 

Rugby Charity v. Merriweather. 

Rummell v. Railroad Co. 

Rush v. Manhattan Ry Co. 

S. 

Sage v. Brooklyn. 

Satterly v. Winne. 

Saunders v. Townsend. 

Schild v. Railroad Co. 

Schimpf v. Sliter. 

Schomer v. Rochester. 

Schreiber’s Appeal. . 

Scott y. Hough. 

Seneca Road Co. v. Railroad Co. 

Shea v. Railroad Co. 

Sherman v. Kane. 

Simmonson v. Stellenmerf. 

Simmons v. Sines. 

Slater v. Manhattan Ry. Co. 

Smith v. Bailey. 

v. Dygert. 

v. Ferris. 

v. Helmer. 

v. Mayor. 

v. N. Y. Elevated R. R. Co. 

v. Ryan. 

v. Town of Clarkstown. 

v. Village of White Plains. 

v. Wright. 

Snyder v. Plass. 

v. Trumpbour. 


Page 

25 

26 
153 

67, 119 
121 
102 
107 
109 


. 71, 79 

.125, 128 

.102, 121 

. 19, 109 

. 150 

. 25,26 

. 76 

. 117 

. 108 

.151, 153 

. 73 

.149, 150 

. 71 

. 109 

. 151 

. 149 

. 93 

. 9 

. 25 

. ... 110 

. 117 

. 26,117 

•. 70 

22, 24, 30, 131 

5, 90, 104, 105 

.... 78, 87. 90 







































The Highway Law of New York. 


XXXV 


Table of cases cited 


Page 

Speir y. New Utrecht.. 104, 105 

Sperb v. Metropolitan Ry. Co. 109 

Spicer v. Slade..119, 120 

Splittorf v. State. 25 

Stacy v. Phelps. 25 

Starr v. Rochester . 71 

Stebbins v. Kay. 82, 83, 93 

Steimmetz v. Metropolitan Ry. Co. . 109 

Sterry v. N. Y. Elevated R. R. Co.... 109 

Stewart v. Porter Mfg. Co... 117 

v. Railroad Co. 153 

v. Waller. 72 

Stone v. Town of Poland. 26 

Storck v. Metropolitan Ry. Co.. • • • 109 

Story v. N. Y. Elevated R. R. Co . 109 

Strickland v. Woodworth. 124 

Striker v. Kelly. 87, 93 

Sun Publishing Assn. v. The Mayor. 103 

Supervisor of Galway v. Stimson.. • • • 121, 155 

Surdam v. Fuller. 138 

Sutphen v. Town of Hempstead. 23 

Syracuse Salt Co. v. Railroad Co. 108 

T. 

Talmage v. Huntting.105, 122 

Taylor v. Porter.. 124, 128, 131 

v. Town of Constable. 26, 30 

Terpenning v. Smith. ®7 

Thacher v. Supervisors... 134 

Thayer v. Lewis. 58 

Theall v. Yonkers. 23 

Thompson v. Allen. HO 

v. Manhattan Ry. Co. 109 

Tierney v. Troy. 26 

Tiffany v. Gifford. 81 





































xxxvi 


The Highway Law of New York. 


Table of cases cited. 


Page 

Tingue v. Port Chester... 83 

Todd v. Birdsall. 121 

v. Todd. 72 

Tompkins v. Hodgson. 107, 116 

Town of Corning v. Head. 66 , 104, 116, 122 

Galen v. Plankroad Co. 21 

Gallatin v. Loucks. 21 

Kirkwood v. Newbury. 13^ 

Palatine v. Railroad Co... 19 

Salamanaca v. Cattaraugus Co. 135 

Sardinia v. Butler....120, 122 

Weekfield v. Shasley.119, 123 

Windsor v. D. & H. C. Co. 19 

Wirt v. Supervisors. 134 

Treanor v. Eichhorn. 135 

Trustees of Jordon v. Otis. 102, 117, 155 

v. Morse. 40, 41 

v. Railroad Co. 108 

Tucker v. Rankin. 5 ? 72 

Turner v. Williams. 80 

Turnpike Co. v. Buffalo. 20 

v. Smith. 106 

V. 

Van Alstyne v. Freday. 8 , 15 

Van Amringe v. Barnett. 106 

Van Bergen v. Bradley. I 44 

Van Brundt v. Town of Flatbush. HI 

Vandemark v. Porter. 100 , 105 

Vanderbeck v. City of Rochester. 101 

Vandermark v. Porter. IO 4 

Van Gassbeck v. Saugerties. 24 

Van Valkenburgh v. New York. 77 

Van Wyck v. Lent. H 9 

Village of Canandaigua v. Benedict. 108 

Fulton v. Tucker. 45 

Voorhees v. Martin. H 9 








































The Highway Law of New York. 


xxxvii 

Table of cases cited. 


W. Page 

Wager v. Railroad Co.108, 110 

Wakeman v. Wilbur. 67, 105, 123 

Walker v. Caywood. 100, 103, 105, 115, 122 

v. Moseley. 58 

Wallace v. Karlenowefski. 69 

Waller v. Town of Hebron.21, 24, 26 

Walsh v. New York. ... 26 

v. Trustees. 26 

Warmer v. Village of Randolph. 25 

Washburn v. Mt. Kisco. 26 

Watrous v. Shear. 8 

Weber v. Buffalo Ry. Co ... . 25 

Weed v: Village of Ballston Spa. 44 

Weinckie v. Railroad Co. 71 

Welch v. Wilson. 115 

Wells v. Sibley. 118 

v. Town of Salina. 14 

Westlake v. Koch. 112 

West v. McGurn . 130 

Wetmore v. Atlantic &c., Co. 102 

v. Tracy. 114, 119, 123 

Whitaker v. Railroad Co. 112, 150, 153 

Whitcher v. Water Works Co. Ill 

White v. Manhattan Ry. Co. HO 

v. Town of Ellisburgh. 143 

v. Wiley... 112 

Whitesides v. Green. 105 

Whitlock y. Town of Brighton. 15, 24 

Whitmore v. Village of Tarry town. 70 

Whitney v. Town of Ticonderoga. 12, 21 

Wicks v. Thompson. 105 

Wiggin v. New York. 69 

Wiggins v. Tallmadge. 67, 102, 104, 105 

Wilbrandt v. Railroad Co.*. 112 

Wildreck v. Hagar. 73 

Wiley v. Smith. 12 








































xxxviii The Highway Law of New York. 


Table of cases cited. 


Page 

Williams v. Hynes. 118 

v. Railroad Co. 108 

v. Safford. 112 

Wilson y. Railroad Co. 69 

Winnegar v. Roe. 7 

Woodman v. State. 25 

Woodruff v. Paddock.100, 106 

Wood v. Watertown. 26 

Woolsey v. Tompkins. 72, 76 

Worster v. Railroad Co. 110 

Wright v. Wilcox. 153 

Wyman v. New York. 82 

Y. 

Yates v. Hathaway.105, 106 

Young v. Town of Macomb. 24 























" i 


► v v i 

r ' 


















/ 






THE 


HIGHWAY LAW. 


CHAPTER 568, LAWS 1890. 


An Act in Relation to Highways, Constituting 
Chapter Nineteen of the General Laws. 


CHAPTER NINETEEN OF THE GENERAL LAWS. 

The Highway Law. 

Article I. Highway officers, their general powers and duties. (§§ 1-24.) 

II. Asssessment for highway labor. (§§ 30-53.) 

III. The duties of overseers of highways, and the performance 

of highway labor. (§§ 60-73.) 

IV. Laying out, altering and discontinuing highways and 

laying out private roads. (§§ 80-123.) 

V. Bridges. (§§ 130-145.) 

VI. Miscellaneous provisions. (§§ 150-164.) 

VII. The regulation of ferries. (§§ 170-174.) 

VIII. Repealing and other clauses'. (,§§ 180-183.) 


ARTICLE I. 

Highway Officers, Their General Powers and Duties. 

Section 1. Short title. 

2. Treasurer of highway commissioners. 

3. Powers of one commissioner. 

4. General powers of commissioners. 

5. Mile-stones and guide-boards. 

6 . Road machines and implements. 





2 


The Highway Law of New York. 


Treasurer of highway commissioners. 


Section 7. 

8 . 

9. 


10 . 

11 . 

12 . 

18. 

14. 

15. 

16. 
17. 


18. 

19. 

20 . 
21 . 

22 . 


28. 

24. 

25. 

26. 


Stone-crushers and materials. 

Custody of stone-crushers. 

Additional tax. 

Extraordinary repairs of highways or bridges. 
Auditing expense thereof. 

Accounts, how made out. 

Unsafe toll-bridge. 

Drainage, sewer and water pipes in highways. 

Actions for injuries to highways. 

Liability of towns for defective highways. 

Action by towm against commissioners. 

Audit of damages without action. 

Reports of commissioners. 

General duties of overseers. 

Opening obstructed highways. 

Penalties against overseers. 

Penalties, how collected. 

Compensation of overseers. 

Division of town into highway commissioner districts. 
Duties of commissioner in each district. 


Section 1 . Short title. — This chapter shall be known 
as the highway law. 

New. 

See notes under § 100, post, as to what constitutes a highway. 

See L. 1893, ch. 655, Appendix, post. 


§ 2. Treasurer of highway commissioners .—-When 
there is more than one commissioner of highways in any 
town, they shall designate one of their number to be 
treasurer. If they fail so to do, the commissioner longest 
in office shall be the treasurer; and all money collected for 
highway purposes, or belonging to the highway fund of 
the town, shall be paid to him. Before receiving such 
money, he shall execute to the town an undertaking, to 
be approved by the supervisor, to the effect that he will 
faithfully account and pay over to any officer or person 




The Highway Law of New York. 


3 


Powers of one commssioner. 


entitled thereto, any money that may come into his hands 
as such treasurer. 

Revised from L. 1873, ch. 395, \ 5. 

As to the election of highway commissioners, see Town Law, §§ 12, 13, 
15, Appendix, post; oath of office, Town Law, §§ 51, 56, Appendix, post; 
regular undertaking required to be given by each commissioner, in addi¬ 
tion to the one required by this section, Town Law, §§ 63, 66, Appendix, 
post; official oath and undertakings, Public Officers Law, §§ 10, 15; an 
officer lawfully holding over, Public Officers Law, § 5; vacancy in office, 
Town Law, § 65, Appendix, post; highway commissioners as fence viewers, 
Town Law, § 21, Appendix, post, and 100, 102-105, 108, 124, 125, 127- 
130; commissioners to resign to town clerk, Public Officers Law, § 21; re¬ 
moval from office for misconduct, &c., Public Officers Law, § 25a. 

See L. 1897, ch. 481, § 21, Appendix, post, amending Town Law as to 
election of highway commissioners. 

As to term of office of highway commissioner. ( People ex rel. Lovetl 
v. Randall, 151 N. Y. 497.) 

§ 3. JPoivers of one commissioner. —When any town 
has but one commissioner of highways, the term, commis¬ 
sioners of highways, when used in this chapter, shall 
mean such one commissioner. 

Practically neiv. A somewhat similar provision was found in L. 1873, 
ch. 395, § 6, hereby repealed. That section teas amendedby L. 1881, ch. 644, 
but the amendment was subsequently repealed by L. 1883, ch. 196. 

For similar provisions, see Town Law, § 15, Appendix, post, and Statu¬ 
tory Construction Law, § 18. 

§ 4. General powers of commissioner .—The com¬ 
missioners of highways in the several towns, shall have 
the care and superintendence of the highways and bridges 
therein, except as otherwise specially provided in relation 
to incorporated villages, cities and other localities; and 
they shall 




4 


The Highway Law of New York. 


General powers of commissioner. 


1. Cause such highways and bridges to be kept in repair, 
and give the necessary directions therefor; 

Revised f rom 1 R. S., ch. 16, tit. 1, art. 1,^1. 

See §§ 16, 17, post, and notes thereunder as to liability of town and high¬ 
way commissioners for defective highways. 

As to powers and duties of highway commissioners as water com¬ 
missioners of their towns, see R. S. part III, ch. 8, tit. 16, § 16; as to care 
and preservation of town sewers, drains or culverts by the highway commis¬ 
sioners, see L. 1893, ch. 545, § 8; as to improvement of village streets by 
officers thereof, see Village Law, §§ 140-169, Appendix,* 7 X>sf; as to care of 
highways on tribal lands, see Indian Law, §§ 12, 73, 80, Appendix, p>ost , 

Because the statute imposes upon the overseers of highways the duty of 
keeping them in repair, the commsssioners are not relieved from that duty 
also and from giving the requisite directions to the overseers. And they 
must also use reasonable diligence to see that their directions are observed. 

(Bartlett v. Crozier, 17 Johns. 437; Farman v. Town of Ellington, 46 Hun, 
41; Bryant v. Town of Randolph, 44 St. Rep. 86.) 

Powers of highway commissioners discretionary; no absolute and imper¬ 
ative duty to repair is imposed. {Peck v. Batavia, 32 Barb. 641.) 

Commissioners of highways have no authority to lay out new roads 
through wild or unimproved lands. {Gould v. Glass, 19 Barb. 179.) 

Commissioners of highways may take gravel within the bounds of the 
highway for the purpose of repairing the road in other places. {Duryea v. 
Smith, 42 St. Rep. 565.) 

Highway officers may not take soil from the land of an owner to use for 
highway purposes at other places than on his land. {Cotanch v. Grover, 
57 Hun, 272.) 

The provisions of the statute intended for the government of citizens and 
do not pertain to the affairs of Indians. {Bishop v. Barton, 2 Hun, 436.) 

The statute which prescribes the powers and duties of commissioners of 
highways should, when applied to village trustees, who are declared com¬ 
missioners, be liberally construed and their acts under it indulgently re. 
garded. {Graves v. Otis, 21 Hill, 466.) 


2. Cause such highways as shall have been laid out, but 
not sufficiently described, and such as shall have been 









The Highway Law of New York. 


5 


General powers of commissioner. 


used for twenty years, but not recorded, to be ascertained, 
described and entered of record in the town clerk’s office; 

Revised from 1 R. S., ch. 16, tit. 1, art. 1, § 1. 

See notes under \ 100, post. 

What constitutes a proper description. ( Tucker v. Rankin , 15 Barb. 471.) 

No authority is conferred upon commissioners to adjudge what was 
originally intended in relation to the width or location of the road, further 
than such intention is manifested by actual user. {People v. Judges , 
24 Wend. 491.) 

Cannot enlarge or change location of road. {Snyder v. Plass, 28 N. Y. 
465; Colev. Van Keuren, 41 Hun, 262; Ivory v. Town of Deerpark, 116 
N. Y. 476; James v. Sammis, 132 N. Y. 239.) 

Where the commissioners of highways have ascertained and described a 
road under this section, their certificate is not a defence to an action against 
an overseer of highways for trespass, where such certificate did not purport 
to be based either upon a record or upon an adjudication of user for twenty 
years; and proof is admissible on behalf of the plaintiff that the road was 
not a public highway either by use or by dedication. {Kelsey v. Burgess, 12 
Supp. 169.) 

3. From time to time, not oftener than once a year, 
divide the town into so many highway districts as they 
shall judge convenient, by writing, under their hands, to 
be filed with the town clerk, and by him to be entered in 
the town book, at least ten days before an annual town 
meeting. A territory not exceeding one square mile, con¬ 
taining a population of not less than one hundred and 
fifty, and not including a part of a city or village, may be 
established as a separate highway district in the following 
manner: A verified petition of two-thirds of the electors 
of such territory representing two-thirds of the taxable 
property therein and describing the territory, may be pre¬ 
sented to the highway commissioner at least twenty days 
before the annual town meeting. The petition shall state 
the population of the proposed district, and the taxable 
persons and property as appears by the last preceding 




6 


The Highway Law of New York. 


General powers of commissioner. 


assessment roll of the town. A farm or lot shall not be 
divided in the formation of such district. Within ten 
days after the presentation of such a petition, the highway 
commissioner shall establish the district in the manner 
above required for other highway districts. The highway 
district so established shall not be abolished, except upon 
the petition or written consent of two-thirds of the electors 
representing two-thirds of the taxable .property of the 
district. The highway commissioner may extend the 
highway district, so established, not more than half a 
mile in any direction, and if it is so extended an order 
shall be entered accordingly. 

Revised from 1 R. S., eh. 16, tit. 1, art. 1, § 1. Amended by L. 1897, cli. 
782. 

See People v. Sly, 4 Hill, 593. 

4. Assign to each of the highway districts such of the 
inhabitants and corporations liable to work on highways, 
as they shall think proper, having regard to proximity of 
residence as much as may be; 

Revised from 1 R. S., eh. 16, tit. 1, art. 1, § 1, as amended by L. 1853, 
ch. 63. 

See § 31, post, as to lists of taxable inhabitants and corporations, how 
furnished to commissioners, and § 33, post, as to method of assessment of 
labor on highways. 

5. Within one week after each annual town meeting, 
make and file with the town clerk, a written appointment 
of a resident of each district, to be overseer of highways 
therein. The town clerk shall notify each overseer of his 
appointment, within ten days after the filing thereof; and 
the person so appointed and notified, shall thereupon 
become and be the overseer of highways within his district 
for one year, and until his successor shall be appointed. 
If any person so appointed overseer, shall refuse to serve, 




The Highway Law of New York. 


7 


General powers of commissioner. 


or his office shall become vacant, the commissioners shall 
in like manner appoint some other person to be overseer; 

Revised from L. 1865, eh. 522, § 7, as amended by L. 1880, ch. 503, and 
from 1 R. S., ch. 16, tit. 1, art. 1, § 14. 

Person appointed overseer liable to a penalty of $10 for refusal to serve, 
(Town Law, \ 55; Winnegar v. Roe , 1 Cow. 258; Haywood v. Wheeler , 11 
Johns. 432; Bentley v. Phelps, 27 Barb. 524.) 

....... , ««. 

6. Require overseers of highways to warn all persons 
and corporations assessed to work on highways, to come 
and work thereon, with such teams and implements, and 
at such times as the said commissioners, or any one of 
them shall direct; 

Revised from 1 R. S., ch. 16, tit. 1, art. 1, § 1. 

See §2 60, 61, post, as to overseers giving warning. 

7. Expend all moneys raised and collected from the 
town at large for highway purposes, upon the highways 
and bridges situated in, or upon the borders of the town, 
or highway districts assigned to the town in which such 
moneys were raised and collected, in such proportion as 
they may deem just and proper; 

Revised from L. 1878, ch. 377, § 2, superseded hereby. 

See §§ 16, 17, post, and notes thereunder as to liability of town and high¬ 
way commissioners for defective highways. 

See L. 1895, ch. 717, Appendix, post, providing .that highway commis¬ 
sioners, where the money system of highway labor has been adopted, must 
file their contracts with the town clerk. See Town Law, § 182, as to con¬ 
tracts being in name of town. See L. 1890, ch. 332, Appendix, post, as to 
certain moneys received from licenses to be paid over to the highway com¬ 
missioners. 

The collector of taxes in each district is required to pay over to the 
highway commissioners the moneys raised for the support of the highways 
and bridges of the town. (Tax Law, § 56.) 

Discretion of commissioners of highways regarding expenditures of 




8 


The Highway Law of New York. 


General powers of commissioner. 


money in their hands must be reasonably exercised. ( Ivory v. Town of 
Deer park, 116 N. Y. 476.) 

Commissioners have no authority to borrow money or give promissory 
note binding upon successors. ( Van Alstyne v. Freday, 41 N. Y. 174; 
Barker v. Loomis, 6 Hill 464; Peoples. Supervisors, 93 N. Y. 397; People v. 
Burrell, 14 Misc. 217.) 

Commissioners must be sued as such upon their contracts; there is no 
personal liability. ( Boots v. Washburn, 79 N. Y. 207.) 

When a town meeting votes to raise money for a bridge, the commis¬ 
sioner of highways is charged with the duty to erect it. ( Birge v. Ber¬ 
lin Bon Bridge Company, 16 Supp. 596.) 

The power of commissioners of highways to loan moneys in their hands 
and to enforce the collection of securities taken therefor, is fairly deriv¬ 
able from their general powers and duties. ( Commissioners v. Peek, 5 
Hill. 215.) 

See Watrous v. Shear, 25 W. D. 164; People v. Gcnge, 38 St. Rep. 345; 
Furman v. Taylor , 41 St, Rep. 791; Freel v. County of Queens, 9 App. Div. 
186. 

8. Have power to enter upon the lands of any person 
adjoining any of the rivers, streams or creeks of the state, 
drive spiles, throw up embankments, and perform such 
other labor as may be necessary upon the banks of such 
rivers, streams or creeks for the purpose of keeping them 
or any of them within their proper channels and prevent¬ 
ing their encroachment upon any of the highways of the 

* 

state, and to protect such highways and the property of 
the town from damages by reason of such rivers, streams 
or creeks washing away their embankments, or changing 
the location of the channels, and to agree with the owner 
of any such lands upon the amount of damages, if any, 
sustained by him in consequence of such entry upon his 
lands and the performance of the work herein authorized, 
and the amount of the damages so agreed upon shall be a 
town charge, and shall be audited and paid in the same 
manner as other town charges. If the commissioners are 
unable to agree with such owner upon the amount of 








The Highway Law of New York. 


9 


Mile-stones and guide-boards. 


damage thus sustained, the amount thereof shall be ascer¬ 
tained and determined and paid in the same manner as 
damages for the laying out and opening of highways are 
required by law to be ascertained, determined and paid, 
where the commissioners and land owner are unable to 
agree upon the amount thereof. 

Added by L. 1891, ch. 212. 

See §§ 83-89, post , as to method of ascertaining damages in case of dis¬ 
agreement. 

An act authorizing the taking of private property for public purposes, 
and providing for a just compensation to the owner, is not unconstitu¬ 
tional because it omits to make the assessment and payment of damages 
a condition precedent to an entry upon and occupation of the premises. 
(Smith v. Helmer, 7 Barb. 416.) 

§ 5. Milestones and guide-boards .—Commissioners 
of highways may cause mile-boards or stones to be erected 
upon the highways in their town as they think proper; 
they shall also cause guide-posts, with proper inscriptions 
and devices, to be erected at the intersectings of such 
highways therein, as they may deem necessary, which 
shall be kept in repair at the expense of the town, by the 
overseers of the highways of the districts in which they 
are respectively located. Upon the written application 
of five resident taxpayers of any town or twenty resident 
taxpayers of the county in which any such town is located 
to the commissioners of highways, requesting the erection 
of one or more guide-boards at the intersection of high¬ 
ways in such town, the commissioner of highways shall 
cause to be erected at the intersections mentioned in such 
application such guide-boards, indicating the direction, 
distances and names of the towns, villages or cities to or 
through which such intersecting highways run. Such 
application shall designate the highway intersections at 
which such guide-boards are requested to be erected and 




10 


The Highavay Law of New York. 


Road machines and implements. 


may contain suggestions as to the inscriptions and devices 
to be placed upon such boards. The cost of the erection 
and maintenance of such boards shall be a town charge. 
If the commissioner of highways refuses or neglects for a 
period of sixty days after receiving within application to 
comply with the request contained in such application, he 
shall for such neglect or refusal forfeit to the town the sum 
of twenty-five dollars to be recovered by the supervisor in 
the name of the town, and the amount so recovered shall 
be set apart for the erection of such guide-boards. 

Revised from 1 R. S., ch. 1G, tit. 1, art. 1, §§ 5, 9, 10; amended by L. 1895, 
ch. 330. 

See notes under § 153, post , as to penalties for injuring mile-stones and 
guide-posts. 

As to the erection of mile-stones and guide-posts by turnpike or plank- 
road corporations, see Transportation Corporations Law, § 136, Appendix, 
post. 

§ 6. Hoad machines and implements .—Commis¬ 
sioners of highways may, upon the request of one or 
more overseers of the highway districts of their town, con¬ 
tract for and purchase for such district or districts, upon 
credit or otherwise, a good and sufficient scraper and 
plow, or either of them, and if a majority of the tax¬ 
payers of one or more highway districts in any town, rep¬ 
resenting more than one-half of the taxable property in 
such district or in each of such districts, to be ascertained 
by the last preceding assessment roll and certified to as 
such by the town clerk of the town, petition the commis¬ 
sioner or commissioners of highways of such town there¬ 
for, such commissioners may together with the super¬ 
visor and overseer or overseers of such district or districts, 
contract for and purchase upon credit or otherwise, a road 
machine for the use of such district or districts, which 
implements shall be used, cared for and owned by such 





The Highway Law of New York. 


11 


Road machines and implements. 


district or districts jointly. Such implements shall be 
paid for out of the highway tax of the district or districts 
for which they are purchased, and may be paid for in 
annual installments, not exceeding live. If purchased for 
more than one district the amount paid by each shall be 
in proportion to the amount of highway tax; a copy of the 
note or contract issued upon the purchase of such imple¬ 
ments, shall be filed in the office of the town clerk of the 
town in which such town or road district is situated, and 
it shall be the duty of said town clerk to present a state¬ 
ment of the sura due thereon to the town board at each 
annual meeting thereafter for the audit of town charges, 
and the town board shall audit such sum and certify the 
same to the board of supervisors of the county. Not more 
than one-half of the highway tax of any district shall be 
applied in payment therefor, in any one year. The por¬ 
tion of such tax so applied, shall be required to be paid 
in money, and be assessed and levied upon the property 
of such district or districts, and collected in the same 
manner as other town charges are assessed, levied and 
collected, except that the amount thereof shall be put in 
a separate column upon the tax roll, and the board of 
supervisors of the county shall cause the sum certified by 
the town board, to be levied upon the taxable property of 
such highway district. Such commissioner of highways 
shall with the assistance of the overseers of highways, in 
any road district which is to be charged with the payment 
for such machine after the completion of the assessment 
roll, and ten days before the meeting of the board of 
supervisors of the county, make and deliver to the super¬ 
visor of such town a list of the persons in such district or 
districts who are named in the last assessment roll of the 
town and chargeable with the payment of a tax for such 
machine. The commissioner or commissioners of high¬ 
ways may, also, with the approval of the town board, 




12 


The Highway Law of New York. 


Stone crushers and materials. 


purchase and hold for the use of the town at large, one or 
more road machines, and pay for the same with money 
appropriated and set apart for highway purposes. It 
shall be the duty of the commissioner or commissioners of 
highways of each town to keep the road machines belong¬ 
ing to such town, or any road district or districts in such 
town in repair, if such repairs are reasonable, and pay the 
expenses thereof out of the general highway funds of the 
town, and also to provide a suitable place for housing and 
storage of all tools, implements and machinery that are 
owned by the town or by the several highway districts 
and cause these tools and implements and machinery to be 
stored therein when not in use. When such repairs upon 
any road machine belonging to any road district or dis¬ 
tricts shall exceed the sum of eight dollars in any one 
year, such expense shall be assessed and levied upon the 
property of such districts in the same manner as above 
provided for the collection of the purchase money of said 
machines, and when collected shall be paid to the com¬ 
missioner or commissioners of highways of said town. 

Revised from 1 R. S., ch. 16, tit. 1, art. 1, § 11, and various amendments 
thereto. Amended by L. 1895, eh. 586, by L. 1896, ch. 987, and by L. 1898, 
ch. 155. 

See L. 1895, ch. 717, Appendix, post, providing that highway commis¬ 
sioners, where the money system of highway labor has been adopted, 
must file their contracts with the town clerk. See Town Law, § 182, as to 
contracts being in name of town. 

Road scraper left in road by commissioner, held to be an obstruction. 
{Whitney v. Town of Ticonderoga, 127 N. Y. 40.) 

§ 7. Stone crushers and materials .—The town board 
and commissioner or commissioners of highways of any 
town may, when authorized by a majority vote of the 
electors voting thereon, by ballot, at the annual or at a 
special town meeting, purchase a machine for crushing 





The Highway Law of New York. 


13 


Custody of stone crushers. 


stone, to be used, under the direction of the commis¬ 
sioner or commissioners of highways of said town, for the 
improvement of the highways thereof, and the commis¬ 
sioners of highways of any such town may, in any year, 
when authorized by a majority vote of the electors voting 
thereon, by ballot, at the annual or at a special town 
meeting, expend in said year a sum not exceeding two 
thousand dollars, for the purpose of purchasing stone, and 
quarrying, breaking, crushing and placing the same on 
the highways, in such road district or districts as the 
town board may direct and defraying the expenses of 
operating such machine, and shall present the account 
and vouchers for said purchases and expenses to the 
town board for audit, and the amount audited, together 
with the cost of such stone crushing machine, when not 
before included, shall be levied and collected as other town 
audits. 

Revised from L. 1884, ch. 220. Amended by L. 1895, ch. 411. 

See L. 1895, ch. 499, Appendix, post, authorizing town boards and high¬ 
way commissioners to expend additional sums for grading and macada¬ 
mizing highways. 

See L. 1891, ch. 309, Appendix, post, as to the acquisition of gravel beds 
by condemnation or purchase. 

§ 8. Custody of stone crushers .—Such machine, when 
purchased, shall be under the care and custody of the 
commissioners of highways of the town; and where there 
is an incorporated village constituting a separate high¬ 
way district, in any town, they may, by an agreement 
with the trustees of the village, permit an equitable use 
of the machine to such separate village district. 

Revised from L. 1884, ch. 220. 

§ 9. Additional tax —Whenever the commissioners of 
highways of any town shall determine, that the sum of 
five hundred dollars will be insufficient to pay the ex- 




14 


The Highway Law of New York. 


Extraordinary repairs of highways or bridges. 


penses actually necessary for the Improvement of highways 
and bridges, they may cause a vote to be taken by ballot 
at any town meeting, to be duly called, authorizing such 
additional sum to be raised as they may deem necessary 
for such purpose, not exceeding one-third of one per 
centum upon the taxable property of the town, as shown 
by the last assessment roll thereof. 

Revised from L. 1832, ch. 274, and L. 1857, ch. 615, § 1. 

4 

See Town Law, §§ 33-34, as to method of taking vote. See § 130 ff. post, 
and County Law, § 60 ff., Appendix, post, as to joint liability of counties 
and towns for the improvement of bridges. See L. 1890, ch. 291, Appen¬ 
dix, post, as to the raising of an additional tax of $300 for the erection of 
wire fences to prevent snoAv drifting in highway. 

As to power of supervisors to authorize a town, under the County Law, 
to issue bonds for moneys raised,to improve its highways. ( Ghiglione v. 
Marsh, 23 App. Div. 61; People v. McIntyre, 154 N. Y. 628; Berlin Bridge 
Co. v. Wagner, 57 Hun, 346; County Law, §§ 12, 13, 14.) 

Power of town to raise money by immediate taxation by vote at open 
town meeting for improvement of its roads and bridges. ( Birge v. Berlin 
Bridge Co., 133 N. Y. 477; Berlin Bridge Co. v. Wagner, 57 Hun, 346; 
Hill v. Supervisors, 12 N. Y. 58.) 

Towns have no general power to borrow money for municipal purposes 
or to pay town charges. ( Wells v. Town of Salina, 119 N, Y. 280.) 

The act of 1857, ch. 615. {Matter of Town Board, 26 St. Rep. 285.) 

§ 10. Extraordinary repairs of highways or 
bridges .—If any highway or bridge shall at any time be 
damaged or destroyed by the elements or otherwise, or 
become unsafe, the commissioner of highways of the town 
in which such highway or bridge may be situated, may, 
with the consent of the town board, cause the same to be 
immediately repaired or rebuilt, although the expenditure 
of money required may exceed the sum raised for such 
purposes as hereinbefore provided; and the commissioners 
of highways shall present the proper vouchers for the ex¬ 
pense thereof to the town board, at their next annual 




The Highway Law of New York. 


15 


Auditing expense thereof. 


meeting, and the same shall be audited by them and col¬ 
lected in the same manner as amounts voted at town 
meetings. 

Revised from L. 185S, eh. 103, § 1, as amended by L. I 860 , ch. 442, § 1. 
Amended by L. 1895, ch. 606. 

See § 142, post, as to repairing bridges for which two or more towns are 
jointly liable; § 145, post, as to the erection of iron bridges; notes under 
§§ 16, 130, 134, post, as to liability of towns for the repair of bridges. 

Conjmissioners of highways have no power to contract a debt against 
the town by borrowing money for the repair of roads and bridges. (Barker 
v. Loomis, 6 Hill, 464; Van Alstyne v. Freday, 41 N. Y. 174; People v. 
Supervisors, 93 N. Y. 397; People v. Burrell, 14 Misc. 217.) 

A commissioner of highways has no authority to bind a town, except 
such as is expressly conferred by statute. (Mather v. Crawford, 36 Barb. 
565.) 

Power of highway commissioners under this section to borrow money 
upon the credit of the town to pay for bridges (Boots v. Washburn, 79 
N. Y. 207.) 

Commissioners of highways have no general authority to bind a town by 
their contracts save in exceptional cases prescribed by statute. (People ex 
rel. Everett v. Supervisors, 93 N. Y. 397; Berlin Bridge Co. v. Wagner, 57 
Hun, 346.) 

As to what constitutes “consent of town board.” (People ex rel. State 
v. Smith, 64 St. Rep. 420.) 

Commissioners of highways must show that they have attempted to 
avail themselves of this statutory provision, if town is to be relieved from 
liability to one injured by their neglect to repair a defect in a highway 
known to them. (Whitlock v. Town of Brighton, 2 App. Div. 24.) 

Commissioner of highways has exclusive control of the construction of 
a bridge, after it is ordered by the town board. (People ex rel. Groton 
Bridge Co. v. Town Board, 92 Hun, 587.) 

When town board consents that a commissioner of highways shall con¬ 
struct a bridge, it becomes its duty to audit his bill on the merits when 
duly presented. (People v. Smith, 83 Hun, 432.) 

See Bruner v. Lewis, 22 St. Rep. 93. 

§ 11. Auditing expense thereof .—The town hoard 
may be convened in special sessions by the super¬ 
visor, or in his absence, by the town clerk, upon 




16 


The Highway Law of New York. 


Accounts, how made out. 


the written request of any commissioners of high¬ 
ways, and the bills and expenses incurred in the 
erection or repairs of any such highways or bridges, may 
then be presented to, and audited by the town board; and 
the supervisor and town clerk shall issue a certificate, to 
be subscribed by them, setting forth the amount so audited 
and allowed, and in whose favor, and the nature of the 
work done and material furnished, and such certificate 
shall bear interest from its date, and the amount thereof, 
with interest, shall be levied and collected in the same 
manner as other town expenses. 

Revised from L. 1858, ch. 103, § 2. 

Mandamus will lie to compel a town board to audit a claim for moneys 
expended in rebuilding a bridge by a commissioner of highways who was 
authorized so to do under the provisions of § 10 of the Highway Law. 
(People v. Smith, 83 Hun, 432; People v. Town Board, 92 Hun, 585.) 

A town board acts judiciously in determining its liability, and its action 
cannot be reviewed or controlled by the courts through a writ of man¬ 
damus. (. People v. Barnes, 114 N. Y. 317.) 

Where a town board has consented to the repairing of a bridge it must 
allow the reasonable expense thereof. ( People v. Smith, 83 Hun, 432.) 

§ 12. Accounts, hotv made out .—No account for ser¬ 
vices rendered, or material furnished according to the 
provisions of this chapter, shall be allowed by such 
board unless the same shall be verified in the same man¬ 
ner as town accounts are required by law to be verified, 
nor unless the commissioners of highways shall certify 
that the service has been actually performed, and the ma¬ 
terial was actually furnished, and that the same was so 
performed or furnished by the request of such commis¬ 
sioners; and the town board may require and take such 
other proof as they may deem proper, to establish any 
claim for such labor and material, and the value thereof. 

Revised from L. 1858, cli. 103, § 3. 

See Town Law, § 1G7, as to verification of accounts. 







The Highway Law of New York. 


17 


Unsafe tollb-ridge. 


§ 13. Unsafe toll-bridge .— Whenever complaint in 
writing, on oath, shall be made to the commissioners of 
highways of any town in which shall be, in whole or in 
part, any toll-bridge belonging to any person or corpora¬ 
tion, representing that such toll-bridge has from any cause 
become, and is unsafe for the public use, such commis¬ 
sioners of highways shall forthwith make a careful and 
thorough examination of such toll-bridge, and if upon the 
examination thereof, they shall be of the opinion that the 
same has from any cause become dangerous or unsafe for 
public use, they shall thereupon give immediate notice to 
the owners of such toll-bridge, or to any agent of such 
owners, acting as such agent, in respect to such bridge, 
that they have on complaint made, carefully and thoroughly 
examined the bridge, and found it to be unsafe for the 
public use. Such owners shall thereupon immediately 
commence repairing the same, and cause such repairs to 
be made within one week from the day of such notice 
given, or such reasonable time thereafter as may be nec¬ 
essary to thoroughly repair the bridge, so as to make it in 
all respects, safe and convenient for public use; and for 
neglect to take prompt and effective measures so to repair 
the bridge, its owners shall forfeit twenty-five dollars; 
and shall not demand or receive any toll for using the 
bridge, until the same shall be fully repaired; and the 
commissioners of highways shall cause such repairs to be 
made, and the owners of the bridge shall be liable for the 
expense thereof, and for the services of the commissioners 
at two dollars per day; and upon the neglect or refusal to 
pay the same upon presentation of an accouut thereof, the 
commissioners of highways may recover the same by 
action, in the name of the town. 

Revised from L. 1873, eh. 448. 

2 




18 


The Highway Law of New York. 


Drainage, &c., pipes in highway. 


§ 14. Drainage, sewer and water pipes in high¬ 
ways *—The commissioners of highways may upon written 
application of any resident of their town, grant permis¬ 
sion to lay and maintain drainage, sewer and water pipes 
and hydrants under ground, within the portion therein 
described, of any highway within the town, but not under 
the traveled part of the highway, except to cross the 
same, for the purposes of sewerage, draining swamps or 
other lands, and supplying premises with water, upon 
condition that such pipes and hydrants shall be so laid as 
not to interrupt or interfere with public travel upon the 
highway. The consent of the commissioner shall be 
executed in duplicate, signed by him and indorsed with 
the written approval of the supervisor and the acceptance 
of the applicant, and one of such duplicates shall be 
delivered to the applicant and the other filed with the 
town clerk. The consent shall also contain a provision to 
the effect that it is granted on the condition that the appli¬ 
cant will replace all earth removed, and leave the high¬ 
way in all respects in as good condition as before the laying 
of said pipes; that the applicant will keep such pipes and 
hydrants in repair and save the town harmless from all 
damages which may accrue by reason of their location in 
the highway; that upon notice by the commissioner, the 
applicant will make any repairs required for the protection 
or preservation of the highway; that upon his default 
such repairs may be made by the commissioner at the 
expense of the applicant, and that such expense shall be 
a lien prior to any other lien upon the land benefited by 
the use of the highway for such pipes or hydrants; and 
that the commissioner may also, upon the applicant’s 
default, revoke the permission for the use of the highway, 
and remove therefrom such pipes or hydrants. 

Revised from L. 1873, ch. 63, as amended by L. 1886, eh. 452. Amended 
by L. 1897, ch. 204. 

See note under § 100, post, as to “Uses of Highways.” 

See Nicoll v. Sands, 131 N. Y. 19. 





The Highway Law of New York. 


19 


Actions for injuries to highways. 


§ 15. Actions for injuries to highways .—The com¬ 
missioners of highways may bring an action, in the name 
of the town, against any person or corporation, to sustain 
the rights of the public in and to any highway in the 
town, and to enforce the performance of any duty enjoined 
upon any person or corporation in relation thereto, and 
to recover any damages sustained or suffered or expenses 
incurred by such town, in consequence of any act or omis¬ 
sion of any such person or corporation, in violation of any 
law or contract in relation to such highway. 

Revised from L. 1855, ch. 255, and L. 1878, ch. 49. 

See § 153, post, and notes thereunder as to penalties for injuries to high¬ 
ways; § 164, post, as to actions by commissioners to recover penalties. 

See Town Law, § 182, providing that actions be begun in name of town; 
Railroad Law, §11, Appendix, post, as to duty of railroad at intersection 
with highway. 

See note under § 100, post, as to “Uses of Highways;” note under § 157, 
post, as to duties of railroads at crossings. 

As to duty of railroad in restoring and maintaining highway. {Allen v. 
Buffalo, &c. Co., 151 N. Y. 434.) 

A railroad corporation, having its rails in a public highway, must lay 
and keep them so as to cause as little injury as possible. ( Schild v. R. R. 
Co., 133 N. Y. 449; Wiley v. Smith, 25 App. Div. 351.) 

The restoration of a highway to its ’former state is a continuous duty, 
and the right to enforce it is not barred by the Statute of Limitations. 
(Town of Windsor v. D. & H. C. Co., 92 Hun, 127.) 

Commissioner of highways has no power to dictate to a railroad com¬ 
pany how it shall restore a highway to its original condition, but is 
authorized to maintain an action to enforce the performance of this duty. 
{Post v. West Shore R. R., 123 N. Y. 580.) 

Duty of a railroad to restore a highway to its former state does not 
relieve a highway commissioner from caring for the approaches to the 
railroad crossing. {Bryant v. Town of Randolph, 133 N. Y. 70; Buchholtz 
v. Railroad, 66 Hun, 377.) 

Sufficiency of a complaint by a town to compel a railroad company, 
which has given notice of its abandonment of a highway, to surrender the 
whole. {Town of Palatine v. Railroad Co., 22 App. Div. 181.) 





20 


The Highway Law of New York. 


Liability of towns for defective highways. 


The town has a right of action for any injury caused to its bridges, even 
though such injury be caused by the state. (Bidelman v. State , 110 N. Y. 
232.) 

As to the liability of a municipal corporation for injuries to a bridge it 
has ordered removed. (Turnpike Co. v. Buffalo . 58 N. Y. 639.) 

See People v. Dettmer, 26 App. Div. 327, as to right of Brooklyn park 
commissioners to bring an action under this section. 

§ 16. Liability of towns for defective highways .— 
Every town shall be liable for all damages to person or 
property, sustained by reason of any defect in its high¬ 
ways or bridges, existing because of the neglect of any 
commissioner of highways of such town. No action shall 
be maintained against any town to recover such damages, 
unless a verified statement of the cause of action shall 
have been presented to the supervisor of the town, within 
six months after the cause of action accrued; and no such 
action shall be commenced until fifteen days after the 
service of such statement. 

Revised from, L. 1881, ch. 700, § 1. 

This section was evidently intended to preserve the law as established 
by the statute of 1881. 

See § 4, subd. 1 and 7, ante , as to duty of highway commissioners to 
repair highways. 

See §§ 104, 105, post, as to liability for encroachments upon highway. 

The town in its corporate character has no control over the highways. 
It cannot lay out a highway or discontinue one. It is not liable for failure 
to keep highways in repair. Highways are not the property of the town, 
and the use is in the public not for the benefit of the inhabitants of the 
town alone, but of the whole community. The town exercises but two 
important functions in respect to highways; it elects the commissioners 
of highways and determines, through the electors in town meeting, what 
sum shall be laised by taxation for the improvement of highways and 
bridges. The election of commissioners of highways by the town is a 
convenient method of designating suitable public agents to discharge the 
duties imposed for general public purposes upon those officers, and the 
state has committed to the portion of the public residing in the locality to 






The Highway Law of New York. 


21 


Liability of towns for defective highways. 


determine within certain limits what amount of taxation shall be imposed 
for the support of highways. These circumstances do not, however, make 
highway officers the agents of the town, so as to subject the town to lia¬ 
bility for their acts. ( People v. Auditors of Esopus, 74 N. Y. 310; Morey 
v. Town of New fane, 8 Barb. 645; Town of Fishkill v. Plankroad Co., 22 
Barb. 645; Toivn of Gallatin v. Loucks , 21 Barb. 578; Town of Galen v. 
Plankroad Co., 27 Barb. 543; Gailorv. Herrick , 42 Barb. 79; Peoples. Super¬ 
visors, 93 N. Y. 397; Robinson v. Fowler, 80 Hun, 101; Hughes v. Bingham, 
135 N. Y. 347.) 

The impairment of a public highway may be no less such by an obstruc¬ 
tion placed in it than by a physical disturbance. ( Whitney v. Ticonderoga, 
127 N. Y. 40.) 

Duty of a town to see that its streets and highways are in a safe con¬ 
dition, is measured by circumstances. ( Glasier v. Town of Hebron, 131 
N. Y. 447.) Same held regarding duty of commissioners of highways. 
{Dow v. Toivn of Oyster Bay , 84 Hun, 510; Clapp v. Town of Ellington, 87 
Hun, 542; Waller v. Town of Hebron, 5 App. Div. 577; Foels v. Town of 
Tonawanda, 75 Hun, 363.) 

The responsibility of the town is measured by the responsibility of the 
commissioner, who is chargeable only where the injury is due to his failure 
to exercise ordinary care in the performance of his duties. ( Lane v. Town 
of Hancock, 142 N. Y. 510; Riley v. Town of Eastchester, 18 App. Div. 94.) 

Town is not liable unless upon the same facts its commissioner of high* 
ways would have been liable before the passage of the act. {Clapper v. 
Town of Waterford, 131 N. Y. 382; Bryant v. Town of Randolph, 133 N. Y. 
70; Lane v. Town of Hancock, 142 N. Y. 510.) 

When from the facts of the case a town could not recover over against 
the commissioner of highways, the plaintiff in an action to recover damages 
for an injury sustained by reason of an alleged defect in the highway, 
could not recover against the town. {Waller v. Town of Hebron, 5 App, 

Div. 577.) 

It is the negligence of the highway commissioners which gives the right 
of action against their respective towns. {Bidwell v. Town of Murray, 40 
Hun, 190; Farman v. Town of Ellington, 46 Hun, 41.) 

As to evidence of negligence of town not being evidence of negligence 
of highway commissioner. {Glasier v. Town of Hebron, 41 St. Rep. /52.) 

Liability of city or village not measured by liability of its highway com¬ 
missioners as in case of town. {Burns v. honkers, 83 Hun, 211.) 




22 


The Highway Law of New York. 


Liability of towns for defective highways. 


However it may be in cities and in incorporated villages, in towns there 
may be defects in highways, very serious ones, without negligence on the 
part of the commissioner of highways. Where a commissioner has not 
enough money to repair all the roads in his town, a mistake in judgment 
after such careful consideration as the circumstances require is not negli¬ 
gence. (Patclien v. Town of Walton, 17 App. Div. 158.) 

If highway commissioners err in judgment in expending such funds as 
they have, when the same are not sufficient to make all needed repairs, the 
town is not liable. (Monk v. Town of New Utrecht , 104 N. Y. 552.) 

This discretion must be reasonably exercised. (Ivory v. Town of Deer- 
park, 116 N. Y. 476.) 

Highway commissioners are not chargeable with negligence unless they 
had knowledge of the necessity of repairing bridges; but they must 
inspect all bridges and use due diligence to ascertain defects. (Hicks v. 
Chaffee, 13 Hun, 293; Lawson v. Woodstock , 20 Weekly Dig. 570; Cousins 
v. Carncross, 21 Weekly Dig. 435; Bidwell v. Murray, 40 Hun, 190.) 

Commissioners of highways having the requisite funds in hand or under 
their control, are bound to repair bridges which are out of repair, they 
having notice of their condition; and they are bound to repair them with 
reasonable and ordinary care and diligence, and if they omit this duty, 
they are liable to individuals who sustain special damages from such 
neglect. Notice to the commissioners may be constructive notice. 
{Hover v. Barkhoof, 44 N. Y. 113; Smith v. Wright, 24 Barb. 176; Mackey 
v. Locke, 28 St. Rep. 218.) 

Highway commissioners are liable individually for any injury resulting 
from their own neglect to repair a highway, if they have funds provided 
for such a purpose, to any person who has sustained damages. {People v. 
Board of Town Auditors, 75 N. Y. 316; Bullock v. Town of Durham, 64 
Hun, 380.) 

Individual liability of commissioners for injuries received in conse¬ 
quence of failure to repair a highway. {Babcock v. Gifford, 29 Hun, 186; 
Lament v. Haight, 44 How. Pr. 1.) 

Highway commissioners are liable to persons injured on a bridge out of 
repair, when there are funds on hand with which to repair. {Smith v. 
Wright, 24 Barb. 170; s. c., 27 Barb. 621. 

As to the indictment of highway commissioners for failing to repair a 
bridge. {People v. Adsit, 2 Hill, 619; People v. Mohawk Bridge Co., 7 
Alb. Law Jour. 232.) 






The Highway Law of New York. 


23 


Liability of towns for defective highways. 


Liabitily of commissioners for the acts of their predecessors. ( Gould v. 
Booth, 66 N. Y. 62.) 

For failure to repair a bridge between adjoining towns the highway 
commissioners of such towns are jointly liable. ( Bryan v. London, 3 
Hun, 500; Theall v. Yonkers, 21 Hun, 265.) 

Where two towns are jointly liable for the care of a bridge under a 
legislative act, an action will lie against them jointly for failure to repair. 

(Oakley v. Mamaroneck, 39 Hun, 448.) 

It is not necessary to sue two towns jointly, although they are jointly 
liable for the negligence of their highway commissioners. ( Clapp v. 
Town of Ellington, 87 Hun, 542.) 

A highway commissioner is negligent in leaving a bridge partly 
unfinished and in a dangerous condition, even though he be out of funds 
for its completion, (j Rector v. Pierce, 3 S. C. 416; see, also, Stacy v. Phelps, 
47 Hun, 54, and Lane v. Wheeler, 35 Hun, 606.) 

Liability of town for existence of snowdrift within one day after ceasing 
of storm. ( Dorn v. Town of Oyster Bay , 84 Hun, 510.) 

Commissioners of highways owe no greater duty in the matter of keep¬ 
ing a road in repair, to bicyclists than to other travelers. (Sutphen v. 
Town of Hempstead, 80 Hun, 409.) 

The filing with the supervisor of the statement required by this section 
is a condition precedent to the maintenance of an action. ( Borst v. 
Town of Sharon, 24 App. Div. 599; Reining v. Buffalo, 102 N. Y. 308; 
Curry v. Buffalo, 135 N. Y. 366.) 

No substitute for the statement or waiver thereof will be of effect. 
(Borst v. Town of Sharon, 24 App. Div. 599.) 

Condition that a verified statement of the cause of action shall have 
been presented to the supervisor within six months, is not unconstitu¬ 
tional. ( Olmsteed v. Town of Pound Ridge, 71 Hun, 25.) 

In an action against a town for damages, the complaint must allege 
that the town had or could obtain funds for repairing its bridges. 
(Eveleigh v. Hounsfield, 34 Hun, 140; but see Oakley v. Mamaroneck, 39 
Hun, 448.) 

It is a defense to an action for damages against a commissioner of high¬ 
ways for injuries sustained in consequence of a defective highway to 
show that he was without the necessary funds to make the repairs and 
without the power to raise such funds. (Clapper v. Town of Waterford » 
131 N. Y. 382; Barker v. Loomis, 6 Hill, 463; People ex rel. v. Supervisors, 




24 


The Highway Law of New York. 


Liability of towns for defective highways. 


93 N. Y. 397; Hover v. BarkJioof, 44 N. Y. 113; Hines v. City of Lockport, 
50 N. Y. 238; Monk v. Town of New Utrecht , 104 N. Y. 552.) 

Lack of funds to repair is a good defense on the part of highway com¬ 
missioners, and the burden is on them to show it. ( Bidwell v. Murray , 40 
Hun, 190; Getty v. Hamlin , 46 Hun, 1.) 

The lack of funds for repairs is an affirmative defense to be alleged 
and proven by the defendant. {Lane v. Town of Hancock , 67 Hun, 623.) 

Where the highway commissioners of a town are not furnished with 
sufficient funds to repair all the highways and bridges of a town, it is 
within their discretion as to which they shall repair and they cannot be 
held responsible in a civil action for damages resulting from the fact that 
certain highways or bridges are out of repair. {Garlinghouse v. Jacobs , 
29 N. Y. 297; Smith v. Wright, 27 Barb. 627.) 

Commissioners not bound to repair either roads or bridges until neces¬ 
sary funds are provided. {Barker v. Loomis, 6 Hill, 464.) 

In order to make the defense as to funds complete, it must appear not 
only that there was a lack of funds, but an inability, by the exercise of 
reasonable diligence, to obtain them. Section 10 of this act provides for 
the raising of funds for extraordinary repairs. {Clapper v. Town of 
Waterford, 151 N. Y. 389; Whitlock v. Town of Brighton, 2 App. Div. 23; 
Young v. Town of Macomb, 11 App. Div. 480; McMahon v. Town of Salem, 
25 App. Div. 1.) 

It is no defense in an action for damages, caused by a defective high¬ 
way, that the funds in the hands of the commissioner had been designed 
for payment upon ordinary contracts for work. {Rliines v. Town of 
Royalton , 40 St. Rep. 662.) 

The necessity of barriers along a road is usually a question of fact for 
the jury. {Waller v. Town of Hebron, 5 App. Div. 577; Glasierx. Hebron, 
82 Hun, 311; Burns v. City of Yonkers, 83 Hun, 211; Van Gassbeck v. 
Saugerties, 82 Hun, 415; Lane v. Town of Hancock, 67 Hun, 623.) 

The fact that a road which ascends gradually, which is in excellent con¬ 
dition and which experience has not shown to be dangerous, has no guards 
upon its sides, does not necessarily charge the town with negligence. 
{Patchen v. Town of Walton, 17 App. Div. 158.) 

Duty of highway commissioner to care for approaches to a railroad 
crossing. {Bryant v. Toivn of Randolph, 133 N. Y. 70.) 

The defendant, a contractor with the state, held liable for failing to 






The Highway Law of New York. 


25 


Liability of towns for defective highways. 


properly safeguard the highway, while constructing a bridge. ( Weber v. 
Buffalo Ry. Co., 20 App. Div. 292.) 

Discussion of the liability of a village for failing to guard a dangerous 
portion of a highway by a railing. (Warner v. Village of Randolph. 18 
App. Div. 458.) 

The existence of an unguarded sluiceway open on each side of a village 
highway, which has existed for a number of years and has caused numer' 
ous accidents is itself sufficient evidence of the negligence of the high¬ 
way commissioner. ( Rankert v. Town of Junius, 25 App. Div. 470.) 

The fact that before the occurrence of an accident at a defective bridge, 
the highway commissioners had procured materials for its repair, and did 
repair it on the following day, warrants the inference that they had funds, 
or means to procure funds, to repair the bridge. ( Getty v. Town of Hamlin, 
8 Supp. 191.) 

The fact that a road has been used as a public highway for many years 
and has been so recognized by town officers, renders the town liable to a 
traveller for in juries sustained by reason of negligence of highway com¬ 
missioners to keep it in repair. ( Ivory v. Town of Deerparlc, 116 N. Y. 476.) 

Town is not liable for personal injuries caused by the negligence of the 
highway commissioner, to a workman, engaged by him, to repair the 
road. ( Robinson v. Town of Fowler, 80 Hun, 101.) 

Where a highway commissioner in making repairs to a highway found 
it necessary to shut off water from plaintiffs mill and it was shown that 
he prosecuted his work with diligence, he is not held liable in damages 
for the loss to the mill owner. (Kerr v. Joslin, 49 St. Rep. 257.) 

As to the liability of the State in regard to its bridges. (Carpenter v. 
Cohoes , 81 N. Y. 21; Schomer v. Rochester, 15 Abb. N. C. 57; Splittorf v. 
State. 108 N. Y. 205; Woodman v. State, 127 N. Y. 397.) 

A county is not liable for its neglect to keep a public bridge in repair. 
(Ensign v. Supervisors of Livingston, 25 Hun, 20.) 

Although the duty of maintaining a bridge is imposed upon a county by 
special act, the county is not liable for damages for injuries arising from 
the neglect of the county to make repairs. (Ensign v. Supervisors, 25 Hun, 
20; see also notes under § 130, x>ost; Markey v. County of Queens, 154 N. Y. 
675.) 

A city must keep its streets in reasonable repair. (Smith v. Mayor, 17 
App. Div. 438.) 

As to the liability of villages incorporated under Laws 1870, ch. 291, to 




26 


The Highway Law of New York. 


Action by town against commissioners. 


repair bridges within their corporate limits. (Washburn v. 311. Kisco, 35 
Hun, 329.) 

Bridges erected by private corporations must be kept in repair by such 
corporations; there is no liability of the town. (Roe v. Elmendorf , 52 
How. Pr. 232, Evers v. Hudson River Bridge Co ., 18 Hun, 144; Babcock v. 
N. Y. C. R. R . Co., 20 Weekly Dig. 477; Heacock v. Sherman, 14 Wend. 58; 
Dygert v. Schenck, 23 Wend. 446.) 

As to the liability for injuries received upon the New York and Brooklyn 
Bridge. {Walsh v. New York, 107 N. Y. 220; Hannon v. Agnew, 96 N. Y. 
439; Walsh v. Trustees, c See., 96 N. Y. 427.) 

As to what evidence is admissible to show that a bridge forming part of 
a city street was controlled by the city. (Schomer v. Rochester, 15 Abb. 
N. C. 57.) 

When this statute will not be construed to act retrospectively. 

(.Frasier v. Town of Tompkins, 30 Hun, 168; Bullock v. Town of Durham, 
46 St. Rep. 460.) 

Further cases as to the liability of towns and cities for damages arising 
from defective and unsafe highways and bridges. ( 31aginnis v. Brooklyn, 
26 St. Rep. 689; Herrington v. Phoenix, 41 Hun, 270;! Langlois v. Cohoes , 
58 Hun, 226; Wood v. Watertown, 58 Hun, 298; Clapp v. Ellington, 51 Hun, 
58; Phillips v. 31acedon, 27 Weekly Dig. 331; Taylor v. Constable, 57 Hun, 
371; Schomer v. Rochester, 15 Abb. N. C. 57; Carpenter v. Cohoes , 81 
N. Y. 21; Tierney v. Troy, 41 Hun, 140; Farman v. Town of Ellington , 46 
Hun, 41; Clapper v. Town of Waterford , 62 Hun, 170; Stone v. Town of 
Poland, 58 Hun, 21; Bidlock v. Town of Durham, 64 Hun, 380; 3IcGuinness 
v. Town of Westchester, 66 Hun, 356; Smith v. Town of Clarkstown, 69 Hun, 
155; Oakley v. Town of 31amaroneck, 39 Hun, 448; Read v. Buffalo, 20 Alb. 
Law Jour. 55.) 

See Waller v. Town of Hebron, 5 App. Div. 577; Riley v. Town of East- 
chester, 18 App. Div. 94; Jones v. Utica, 16 Hun, 441. 

§ 17. Action by town against commissioners .—If a 
judgment shall be recovered against a town for damages 
to person or property, sustained by reason of any defect in 
its highways, or bridges, existing because of the neglect 
of any commissioner of highways, such commissioner shall 
be liable to the town for the amount of the judgment, and 






The Highway Law of New York. 


27 


Audit of damages without action. 


interest thereon; but such judgment shall not be evidence 
of the negligence of the commissioner in the action 
against him. 

Revised from L. 1881, eh. 700, §§ 2, 3. 

See § 4, subd. 1 and 7, ante, as to duty of highway commissioners to 
repair highways. 

See notes under § 16, ante. 

Code of Civil Procedure, § 1931, as to judgments against highway com¬ 
missioners: 

§ 1931. When execution against officer not to issue. —An execu¬ 
tion cannot be issued upon a judgment for a sum of money, rendered 
against an officer in an action or special proceeding brought by or against 
him, in his official capacity, pursuant to this article; except where it is 
rendered against the trustee or trustees of a school district, or the com¬ 
missioner or commissioners of highways of a town. In either of those 
cases, an execution may be issued against and be collected out of the 
property of the officer, and the sum collected must be allowed to him, in 
the settlement of his official accounts, except as otherwise specially pre¬ 
scribed by law. 

§ 18. Audit of damages without action *—The town 
board of any town may audit as a town charge, in the same 
manner as other town charges are audited, any one claim 
not exceeding five hundred dollars, for damages to person 
or property, heretofore or hereafter sustained by reason of 
defective highways or bridges in the town, if in their judg¬ 
ment it be for the interest of the town so to do; but no 
claim shall be so audited, unless it shall have been pre¬ 
sented to the supervisor of the town, within six months 
after it accrued, nor if an action thereon shall be barred 
by the statute of limitations. The town board may also 
audit any unpaid judgment heretofore or hereafter recov¬ 
ered against a commissioner of highways for any such 
damages, if such town board shall be satisfied that he 
acted in good faith, and the defect causing such damage 
did not exist because of the negligence or misconduct of 




28 


The Highway Law of New York. 


Reports of commissioners. 


the commissioner, against whom such judgment shall 
have been recovered. 

Revised from L. 1881, ch. 700, § 4, as amended by L. 1889, eh. 146. 

See § 154, post , as to liability of town for bridge breaking. See Town 
Law, §§ 162-170, as to auditing of town charges. 

No absolute liability imposed upon towns for all judgments recovered 
against a sole commissioner of highways in actions prosecuted by him in 
his official name. The board of town auditors have power to determine 
whether the action was rightfully prosecuted. 

In determining as to the liability of the town the board acts judicially, 
and its action cannot be reviewed or controlled by the courts through a 
writ of mandamus. (.People v. Barnes, 114 N. Y. 317.) 

§ 19. Reports of commissioners. —The commissioners 
of highways of each town shall make to the town board, 
at its first meeting in each year, a written report stating, 

1. The labor assessed and performed, 

2. The sum received by them for penalties, commuta¬ 
tions and all other sources, and an itemized account of all 
moneys paid out during the year, with receipts in full by 
the respective parties to whom such money was paid; 

3. The improvements which have been made on the 
highways and bridges, during the year immediately pre¬ 
ceding such report, and the state of such highways and 
bridges; they shall also make at the second meeting of said 
board in each year, a statement of the improvements 
necessary to be made on such highways and bridges, and 
an estimate of the probable expense thereof, beyond what 
the labor to be assessed in that year will accomplish; a 
duplicate of which shall be delivered by the commissioners 
to the supervisor of the town, who shall present such 
duplicate statement to the board of supervisors, who 
shall cause the amount so estimated, not exceeding five 
hundred dollars in any one year, to be assessed, levied 




The Highway Law of New York. 


29 


General duties of overseers. 


and collected, in such town, in the same manner as other 
town charges. 

Revised from 1 R. S., eh. 16, tit. 1, art. 1, §§ 3, 4, as amended by L. 1884, 
eh. 396, and f rom L. 1873, eh. 395, § 7. 

See Town Law, §§ 161-162, as to annual meetings of town board. See 
§ 69, post, as to reports of overseers to commissioners. 

See Berlin Bridge Co. v. Wagner, 57 Hun, 346. 


§ 20. General duties of overseers .—Each overseer 
of highways in every town, shall 

1. Repair and keep in order the highways within his 
district. 

2. Warn all persons and corporations assessed to work 
on the highways in his district, to come and work thereon. 

3. Cause the noxious weeds within the bounds of the 
highway within his district, to be cut down or destroyed 
twice in each year, once before the first day of July, and 
again before the first day of September; and the requisite 
labor therefor shall be considered highway work. 

4. Collect all fines and commutation money, and 
execute all lawful orders of the commissioners. 

5. Cause all loose stone lying in the beaten track of 
every highway within his district, to be removed once in 
every month, from the first day of April until the first 
day of December, in each year. Stones so removed shall 
not be thrown into the gutter, nor into the grass adjoining 
such highways, but they shall be conveyed to some place, 
from which they will not work back or be brought back into 
the track by the use of road machines or other implements 
used in repairing such highways. 

Amended by L. 1898, cli. 352. 

6. Cause the monuments erected or to be erected, as the 
boundaries of highways, to be kept up and renewed, so 




30 


The Highway Law of New York. 


Opening obstructed highways. 


that the extent of such highway boundaries may be 
publicly known. 

Revised from 1 R. S., ch. 16, tit. 1, art. 1, §§ 6, 7. 

See § 4, subd. 5, 6, ante , as to appointment and duties of overseers; also, 
§§21-24, 31, 34, 35, 42, 46, 60-71, post; Town Law, §§51, 56, Appendix, 
post, and Public Officers Law, §§ 10-20, as to official oath and undertaking 
of overseer; Town Law, § 55, Appendix, post, as to penalty for refusal to 
serve; County Law, § 72, Appendix, p>ost, as to erection of highway monu¬ 
ments by supervisors; §§ 70, 71, post, as to noxious weeds generally; Town 
Law, § 22, sub. 5, Appendix, post, as to regulation of noxious weeds by 
town meeting, and County Law, § 12, sub. 7, Appendix, post, as to regu¬ 
lation by supervisors; L. 1801, ch. 309, Appendix, post, as to the acquisi¬ 
tion of gravel for highway purposes by overseers. 

Overseers of highways are subordinate officers acting under the direction 
of the commissioners, who have the general supervision of the subject of 
the repair and maintenance of the highways. ( Farman v. Town of Elling¬ 
ton, 46 Hun, 41; Bartlett v. Crozier , 17 Johns. 439; Smith v. Wright, 27 
Barb. 621; Day v. Day, 94 N. Y. 159.) 

The duty of overseers of highways does not depend upon the direction of 
the commissioners to do it. The statute changes the former with it. 
(McFadden v. Kingsbury, 11 Wend. 667; Farman v. Town of Ellington, 46 
Hun, 41.) 

Highway officers may not take soil from the land of an owner to use for 
highway purposes at other places than on his land. ( Cotanch v. Grover, 57 
Hun, 272.) 

The jurisdiction of overseers in the performance of their duty as to 
repairing extends over every part of the highway. {Anderson v. Van 
Tassel, 53 N. Y. 631.) 

An overseer has no right in making repairs to change a water-course so 
as to flood the lands of an abutting owner. {Moran v. McClearne, 63 Barb. 
185.) 

As to duty of overseer to keep bridge in repair. {Taylor v. Town of Con¬ 
stable, 57 Hun, 371.) 


§ 21. Opening obstructed highways .—Whenever 
the labor in any district has been worked out, commuted 
for, or returned to the supervisor, and the highways are 






The Highway Law of New York. 


31 


Penalties against overseers. 


obstructed by snow, or otherwise, and notice has been 
given to the overseer, in writing, by any two or more in¬ 
habitants of the town, liable to payment of highway tax, 
requesting the removal of such obstruction, the overseer of 
highways in such district, shall immediately call upon all 
persons and corporations liable to highway tax therein to 
assist in removing such obstructions; and such labor, so 
called for by the overseer, shall be assessed upon those 
liable to perform the same, in proportion to their original 
assessments. And all persons so called out and failing to 
appear at the place designated by the overseer, or to com¬ 
mute at a dollar a day, within twenty-four hours after due 
notice, shall be liable to a fine at the rate of one dollar and 
fifty cents a day, for each day’s labor they may be 
required to perform, which fine shall be collectible by the 
overseer, as such, by action in justice’s court, and shall be 
applied to the purposes specified in this section. The 
overseer shall be liable to a penalty of five dollars per day 
for every day he neglects, without good and sufficient rea¬ 
sons, to have such highway opened without delay after 
receiving such written notice, the penalty to be collected 
in justice’s court, by the person first suing for the same, 
and the penalty shall be paid over to the commissioners of 
highways for the use of the town. 

Revised from L. 1868, cli. 791, $ 3, as amended by L. 1869, eh. 593. 

See § 72, post, as to abatement of highway tax by the removal of fences 
to prevent snow-drifting. See L. 1890, ch. 291, Appendix, post, as to the 
erection of wire fences for same purpose. 


§ 22. Penalties against overseers .—Every overseer 
of highways who shall refuse or neglect, 

1. To warn the persons and corporations assessed to 
work on the highways, when he shall have been required 
so to do, by the commissioners or either of them. 




32 


The Highway Law of New York. 


Penalties, liow collected. 


2. To collect the moneys that may arise from fines or 
commutations. 

3. To perform any of the duties required by this chap¬ 
ter, or which may be enjoined on him by the commissioners 
of highways of his town, and for the omission of which no 
other penalty is provided, shall for every such refusal or 
neglect, forfeit the sum of ten dollars. 

Revised from 1 R. S., ch. 16, tit. 1, art. 1, § 16. 

The only remedy for an injury sustained on account of the neglect of the 
overseer to repair a bridge is an action for the penalty. A civil action will 
not lie. (Bartlett v. Crozier , 17 Johns. 439.) 

An overseer of highways may, upon his own motion, continue to litigate 
an action brought against him for an official act, after judgment against 
him, and demand indemnity from the town for the costs thereafter in¬ 
curred. {People v. Auditors of Esopus, 74 N. Y. 310.) 

§ 23. Penalties, how collected ,—The commissioners of 
highways shall prosecute, in the name of the town, every 
overseer of highways, for any penalties known to the 
commissioners to have been incurred by the overseer. 
They shall also upon the complaint of any resident of 
the town, that any such penalty has been incurred, prose¬ 
cute such overseer therefor, if satisfied that the com¬ 
plaint is well founded. The costs and expenses incurred 
by the commissioners in good faith, in such proceedings, 
shall be a town charge, to be audited by the town board. 
If the commissioners refuse or neglect to prosecute for any 
such penalty for thirty days after such complaint shall 
have been made, the complainant may prosecute therefor 
in the name of the town upon indemnifying the town for 
the costs and expenses of such prosecution, in such man¬ 
ner as the supervisor may approve. If the commissioner 
shall neglect or refuse to prosecute for any such penalty, 
knowing that the same has been incurred, he shall be 
liable to a penalty of ten dollars for every such neglect or 




The Highway Law of New York. 


33 


Compensation of overseers. 


refusal, to be recovered by action, in the name of the town, 
brought by the supervisor, or by any taxpayer of the 
town who may indemnify the town, for the costs and 
expenses of the action, in such manner as the supervisor 
may approve. 

Revised from 1 R. S., eh. 16, tit. 1, art . 1, §§ 16, 17, 18. 

See McFadden v. Kingsbury , 11 Wend. 667. 

§ 24. Compensation of overseers .—If any overseer 
shall be employed more days in executing the several 
duties enjoined upon him by this chapter, than he is 
assessed to work on the highways, he shall be paid for the 
excess, at the rate of twelve and a half cents per hour for 
each day, and be allowed to retain the same out of the 
money which may come into his hands under this chap¬ 
ter; but he shall not be permitted to commute for the days 
he is assessed. 

Revised from 1 R. &., cli. 16, tit. 1 f art. 1, § 13, as amended by L. 1880, 
ch. 308, § 1. 

See L. 1870, ch. 311, Appendix, post , as to employment of overseers in 
dividing a highway on the line between cities or towns. 

§ 25. j Division of town into highway commissioner 
districts .—When a town has determined upon having 
three commissioners of highways, the town board may at 
a regular or special meeting thereof divide the town into 
three highway commissioner districts, and assign one 
of such districts to each commissioner of highways. 
Notice of such division, containing a brief and accurate 
description of the boundaries of each district and the name 
of the commissioner assigned thereto, shall be published 
once a week for two succcessive weeks in a newspaper 
published in such town, or if no newspaper be published 
therein, such notice shall be posted in at least six conspicu¬ 
ous places in such town. After a town is divided, the 
3 




34 


The Highway Law of New York. 


Duties of commissioner in each district. 


commissioner shall be elected or appointed, so that at all 
times one commissioner shall reside in each district. 

Added by L. 1898, eh. 127. 

| 26. Duties of commissioner in each district .— 
When a town is so divided, the commissioners shall appor¬ 
tion to each district the moneys raised and collected from 
the town at large for highway purposes and the commis¬ 
sioner assigned to or residing in a district shall expend 
the money so apportioned to his district upon the high¬ 
ways and bridges situated in or upon the borders thereof. 
Each commissioner shall cause the highways and bridges 
in his district to be kept in repair, and shall perform all 
the duties relating thereto, which the commissioners of 
highways of the town, except for such division, would 
perform. His powers and duties as to the supervision, 
repair, construction and improvements of the highways 
and bridges within his district shall be exclusive. As to 
all other powers and duties he shall act in conjunction 
with the other commissioners. 


Added by L. 1898, ch. 127. 




The Highway Law of New York. 


35 


Assesessment for highway labor. 


ARTICLE II. 

Assessment for Highway Labor. 

Section 30. Meetings of commissioners. 

31. Lists of inhabitants. 

32. Non-resident lands. 

33. Assessments of highway labor, how made. 

34. Copies of lists delivered to overseers. 

35. Names omitted. 

36. Appeals by non-residents. 

37. Credit on private roads. 

38. Certain assessments to be separate. 

39. Tenant to deduct assessment. 

40. Reassessment in case of neglect. 

41. Omissions of assessors corrected. 

42. New assessments by overseers. 

43. Sidewalks and trees. 

44. Abatement of tax for shade trees. 

45. Sidewalk tax anticipated. 

46. Certificate of anticipation. 

47. Transfer of certificate. 

48. Abatement of tax for watering trough. 

49. System of taxation defined. 

50. Town may change its system. 

51. Vote thereon. 

52. When change to take effect. 

•53. Annual tax under money system; certain villages exempt 
therefrom. 

54. (Adoption of county . road system.) 

55. (County engineer.) 

56. (Expenses, how paid.) 

57. (Issue of bonds, etc.) 

58. (County roads under charge of supervisors and county 

engineer.) 

<59a. Proceeds of county bonds.) 




36 


The Highway Law of New York. 


Meetings of commissioners. 


Section 30. Meetings of commissioners .—The com¬ 
missioners of highways of each town shall meet within 
eighteen days after the annual town meeting, at the town 
clerk's office, on such day as they shall agree upon, and 
afterwards at such other times and places as they shall 
think proper. 

Revised from 1 R. S., eh. 16, tit. 1, art. 2, § 20. 


§ 31. Lists of inhabitants .—Each of the overseers of 
highways shall deliver to the clerk of the town, within 
sixteen days after his appointment, a list subscribed by 
him, of the names of all the inhabitants in his highway 
district, who are liable to work on the highways; and the 
town clerk shall deliver such lists to the commissioners 
of highways. 

Revised from 1 R. S., ch. 16, tit. 1, art. 2, §§ 21, 23. 

See notes under § 33, post, as to exemptions from highway taxes. 

The provision requiring the overseer to deliver a list to the town clerk 
is merely directory. His omission to do so does not avoid the assessment 
made by the commissioners against persons;liable. ( Rinehart v. Young , 2 
Lans. 354.) 

See Fowler v. Westervelt, 17 Abb. Pr. 59. 

§ 32. Non-resident lands —The commissioners of 
highways in each town, before making the assessment of 
highway labor, shall make out a list and statement, of 
the contents of all unoccupied lots, pieces or parcels of 
land within the town, owned by non-residents; every lot 
so designated, shall be described in the same manner as is 
required from assessors, and its value shall be sot down 
opposite to the description; such value shall be the same 
as was affixed,to the lot in the last assessment-roll of the 
town; and if such lot was not separately valued in such 
roll, then in proportion to the valuation which shall have 




The Highway Law of New York. 


37 


Assessments of highway labor, how made. 


been affixed to the whole tract, of which such lot shall be 
a part. 

Revised from 1 R. S„ ch. 16, tit. 1, art. 2, § 22, as amended by L. 1835> 
ch. 154, § 2. 

See notes under § 33, post. 

Highway taxes on the lands of non-residents are not required either to 
be assessed or to be put on the rolls or to be valued or verified by the 
board of assessors. ( Colman v. Shattuck, 2 Hun, 497.) Nor to be covered 
by the warrant of the supervisors. (Id.) 

See Ensign v. Barse, 107 N. Y. 329; Fowler v. Westervelt, 17 Abb. Pr. 59. 

§ 33. Assessments of highway labor, hoiv made .— 
The commissioners of highways shall, at their first or 
some subsequent meeting, ascertain, assess and apportion 
the highway labor to be performed in their town, in the 
then ensuing } 7 ear, as follows: 

1. The whole number of days work to be assessed in 
each year, shall be ascertained, and shall be at least three 
times the number of taxable inhabitants in the town. 

2. Every male inhabitant being above the age of twenty- 
one years (excepting all honorably discharged soldiers 
and sailors who lost an arm or a leg in the service of the 
United States, during the late war, or who are unable to 
perform manual labor by reason of injuries received, or 
disabilities incurred in such service, members of any fire 
company formed or created pursuant to any statute and 
situated within such town, persons seventy years of age, 
clergymen and priests of every denomination, paupers, 
idiots and lunatics), shall be assessed at least one day. 

3. The residue of such days work, shall be apportioned 
and assessed upon the estate, real and personal, of every 
inhabitant of the town, including corporations liable to 
taxation therein, as the same shall appear by the last 
assessment-roll of the town, and upon each tract or parcel 
of land owned by non-residents of the town contained in 







38 


The Highway Law of New Yoke. 


Assessments of highway labor, how made. 


the list made by the commissioners, excepting such as are 
occupied by an inhabitant of the town, which shall be 
assessed to the occupant. The assessment of labor for 
personal property, must be in the district in which the 
owner resides, and real property in the district where it is 
situated, except that the assessment of labor upon the 
property of corporations, may be in any district or districts 
of the town, and such labor may be worked out or com¬ 
muted for, as if the corporation were an inhabitant of the 
district, but the real property within an incorporated vil¬ 
lage or city, exempted from the jurisdiction of the com¬ 
missioners of highways of the town, and personal property 
of an inhabitant thereof, shall not be assessed for high¬ 
way labor by the commissioners of highways of the town. 
Whenever the assessors of any town shall have omitted to 
assess any inhabitant, corporation or property therein, 
the commissioners of highways shall assess the same, and 
apportion the highway labor as above provided. 

4. The commissioners shall affix to the name of each 
person named in the lists furnished by the overseers, and 
of assessable corporations, and to the description of each 
tract or parcel of land contained in the list prepared by 
them of non-resident lands, the number of days which such 
person or tract shall be assessed for highway labor, as 
herein directed, and the commissioners shall subscribe 
such lists, and file them with the town clerk. 

5. If the commissioners of highways shall neglect for 
one year, after any highway shall have been laid out, and 
title thereto acquired, to open or work the same, or any 
part thereof, and any inhabitant or corporation of the 
town, in or through which the highway runs, shall give 
ten days’ notice to the commissioners of the town, that 
they desire to apply the whole or any part of their high¬ 
way labor to the working of such highway, the commis¬ 
sioners shall assign such inhabitants and corporations to 






The Highway Law of New Yoek. 


39 


Assessments of highway labor, how made. 


such highway district, direct the highway labor for which 
they are annually assessed to be applied to the same, and 
cause the same to be worked and put in good order for 
vehicles and travelers within one year, under the direction 
of any of such inhabitants, whom such commissioners may 
appoint as an overseer of the labor so to be applied to 
such highway; and when the number -of days labor 
assessed in the current year to such inhabitants, as the 
annual highway tax, is not sufficient to put such highway 
in good order, the inhabitants and corporations may antici¬ 
pate the whole or any part of the highway labor assessed, 
and to be assessed against them, for a period not exceed¬ 
ing three years, but from no one of the districts of the 
town shall more than one-half of its annual labor be taxed 
and applied to any highway not embraced in such district. 

Revised from l R. S., eh. 16, tit. 1, art. 2, §§ 19, 22, 24, 32, as variously 
amended. Amended by L. 1898 ,'ch. 353. 

See $ 62 , post, as to the rate per day for labor commuted; L. 1871, ch. 
171, Appendix, post , as to the assessment of persons owning property 
partly within city or village; L. 1862, ch. 220, Appendix, post, as to 
exemption of officers of State Asylum for Idiots; Transportation Corpora¬ 
tions Law, § 150, Appendix, post, as to highway labor on line of turnpike 
road; Indian Law, § 94, Appendix, post, as to labor on Indian lands; 
County Law, § 93, as to employment of prisoners in county jail upon the 
highways; L. 1894, ch, 266, Appendix, post, as to the employment of state 
prison convicts upon highways; L. 1898, ch. 133, Appendix, post, as to 
employment of convicts upon highways in Clinton county. 

Where an application is made to commissioners of highways by citizens 
under the act of 1853, to be allowed to work out their apportionment of 
highway labor upon a plank road, the power to grant the application is 
discretionary with the commissioners, and they cannot be compelled to 
grant it. (. Buffalo Plank Road Co. v. Commissioners of Highways, 10 How. 
Pr. 237.) 

A tenant living upon the line of a plank road may make such applica¬ 
tion. ( People v. Hall, 15 How. Pr. 76.) 

The state cannot tax Indian reservation lands for highway purposes. 






40 


The Highway Law of New York. 


Copies of lists delivered to overseers. 


(Fellows v. Denniston, 72 U. S. 761; s. c., 23 N. Y. 420; Indian Law, § 6.) 

The validity of an assessment for highway labor is not dependent upon 
the validity of the last assessment-roll of the towns, for the highway com¬ 
missioners have no discretion in making their assessment for highway 
labor to omit any real or personal estate appearing upon the assessment 
roll. So though the assessment by the assessors may have been void yet 
the assessment by the commissioners will stand. (Trustees v. Morse , 56 
Barb. 380.) 

Lands of nonresidents may be assessed for highway tax though they be 
wild and unimproved and not occupied or improved by the owner or his 
agent or servant. (Chamberlain v. Taylor, 36 Hun, 24; Ensign v. Barse, 
107 N. Y. 329.) 

Where the commissioner in levying his tax follows the assessment-roll 
as herein provided, he is not liable to a plaintiff for the value of labor ren¬ 
dered by him in satisfaction of an assessment, although an error had been 
made by the assessors. (.Hampton v. Hamsher, 124 N. Y. 634.) 

In respect to all his land in the town, each inhabitant is to be assessed 
for highway labor in the particular road district in which he resides. 
(Rinehart v. Young , 2 Lans. 354.) 

It was formerly held that the commissioners could tax only those corpor¬ 
ations which were assessed on the last assessment-roll of the town. ( People, 
&c. v. Pierce, 31 Barb. 138.) 

Corporations not liable to assessment. (Bank of Ithaca v. King, 12 
Wend. 390.) 

Corporations may be taxed in other districts than that which contains 
their property. (Railway Co. v. Supervisors, 67 How. Pr. 5.) 

Premises must be described with accuracy and precision. (Bayard v. 
Healy, 20 Johns. 495.) 

It is not necessary that the number of the road district or date of the 
commissioner’s warrant be upon the roll assessing the highway tax. 
(Chamberlain v. Taylor, 36 Hun, 24; Ensign v. Barse , 107 N. Y. 329.) 

See Fowler v. Westervelt, 17 Abb. Pr. 59. 


§ 34. Copies of lists delivered to overseers •—The 
commissioners of highways shall direct the clerk of the 
town to make copies of such lists, and shall subscribe such 
copies, after which they shall cause the several copies to 




The Highway Law of Hew York. 


41 


Names omitted. 


be delivered to the respective overseers of highways of the 
several districts in which the highway labor is assessed, 
and the acceptance of the list by any overseer to whom the 
same may be delivered, shall be deemed conclusive evi¬ 
dence of his acceptance of the office of overseer. 

Revised from 1 R. S., eh. 16, tit. 1, art. 2, § 25, as amended by L. 1863, 
cli. 444. 

See Colman v. Shattuck, 2 Hun, 497. 

§ 35. Names omitted .—The names of persons or cor¬ 
porations omitted from any such list, and of new inhabi¬ 
tants, shall from time to time be added to the several lists, 
and they shall be assessed by the overseers in proportion 
to their real and personal estate to work on the highways 
as others assessed by the commissioners on such lists, sub¬ 
ject to an appeal to the commissioners of highways. 

Revised from 1 R. S., ch. 16, tit. 1, art. 2, § 26. 

“New inhabitants” whose names “shall from time to time be added to 
the several lists” are new inhabitants not of the road district but of the 
town. ( Rinehart v. Young , 2 Lans. 354.) 

It was formally held that the assessors could tax only those corporations 
which were assessed on the last assessment-roll of the' town. ( People v. 
Pierce , 31 Barb. 138.) 

One who owns land in the same town with his residence, but in a 
different road district, upon moving his residence to the land without 
having been assessed in respect thereof for highway labor, may be added 
to the list as a name omitted. ( Rinehart v. Young , 2 Lans. 354.) 

See Trustees v. Morse , 56 Barb. 380. 

§ 36 Appeals by non-residents .—Whenever any non¬ 
resident owner of unoccupied lands shall conceive himself 
aggrieved by any assessment of any commissioner of 
highways, such owner, or his agent, may, within thirty 
days after such assessment, appeal to the county judge of 
the county in which such land is situated, who shall, 




42 


The Highway Law of New Yoke. 


Credit on private roads. 


within twenty days thereafter, hear and decide such 
appeal, the owner or agent giving notice to the commis¬ 
sioners of highways of the time of the hearing before the 
judge, and his decision thereupon shall be final and con¬ 
clusive. 

Revised from 1 R. S., ch. 16, tit. 1, art. 2, §§ 27, 28. 


§ 37. Credit on private roads. —The commissioners 
of highways of each town shall credit to such persons as 
live on private roads and work the same, so much on 
account of their assessments as the commissioners may 
deem necessary to work such private road, or shall annex 
the private roads to some of the highway districts. 

Revised from 1 R. S., ch. 16, tit. 1, art. 2, § 29. 

§ 38. Certain assessments to be separate. —When¬ 
ever the commissioners of highways shall assess the occu¬ 
pant, for any land not owned by such occupant, they shall 
distinguish in their assessment lists, the amount charged 
upon such land, from the personal tax, if any, of the 
occupant thereof; but when any such land shall be 
assessed in the name of the occupant, the owner thereof 
shall not be assessed during the same year to work on the 
highways, on account of the same land. 

Revised from 1 R. S., ch. 16, tit. 1, art. 2, § 30. 

§ 39. Tenant to deduct assessment. —Whenever any 
tenant of any land for a less term than twenty-five years, 
shall be assessed to work on the highways for such land, 
and shall actually perform such work, or commute there¬ 
for, he shall be entitled to a deduction from the rent due, 
or to become due from him for such land, equal to the full 
amount of such assessment, estimating the same at the 




The Highway Law of New York. 


43 


Reassessment in case of neglect. 


rate of one dollar per day, unless otherwise provided for 
by agreement between the tenant and his landlord. 

Revised from 1 R. S., eh. 16, tit. 1, art. 2, § 31. 

§ 40. Reassessment in case of neglect, —If it shall 
appear from the annual return of any overseer of high¬ 
ways, that any person or corporation who was assessed to 
work on the highways (other than non-residents), has 
neglected to work the whole number of days assessed, 
and has not commuted for, or otherwise satisfied such 
deficiency, the commissioners of highways shall reassess 
the deficiency to the person so delinquent, at the next 
assessment for work for highway purposes, and add it to 
his annual assessment; such reassessment shall not exon¬ 
erate any overseer of highways from any penalty which he 
may have incurred under the provisions of this chapter. 

Revised from L. 1832, eh. 107, §§ 2, 3. 

§ 41. Omissions of assessors corrected, —Whenever 
the assessors of any town shall have omitted to assess any 
inhabitant or property in their town, the commissioners of 
highways shall assess the persons and property so omitted, 
and shall apportion highway labor upon such persons or 
property, in the same manner as if they had been duly 
assessed upon the last assessment-roll. 

Revised from L. 1837, ch. 431, § 6. 

See note to Hampton v. Hamsher, 124 N. Y. 634, under § 33, ante. 

§ 42. JVeiv assessments by overseers, —When the 
quantity of labor assessed on the inhabitants of any district 
by the commissioners of highways, shall be deemed insuffi¬ 
cient by the overseer of the district to keep the highways 
therein in repair, such overseer shall make another assess¬ 
ment on the actual residents of the district, in the same 
proportion, as near as may be, and not exceeding one- 






44 


The Highway Law of New York. 


Sidewalks and trees. 


third of the number of days assessed in the same year by 
the commissioners, on the inhabitants of the district; and 
the labor so assessed by an overseer, shall be performed or 
commuted for in like manner, as if the same had been 
assessed by commissioners of highways. 

Revised from 1 R. S., cli. 16, tit. 1, art. 1 , § 8. 

Liability of town or village for failure to keep road in repair, it being 
possible to have suitably assessed labor for such repairs under this section. 
(Farman v. Town of Ellington, 46 Hun, 41 ; Weed v. Village of Ballston 
Spa., 76 N. Y. 329 ; People ex rel. Everett v. Supervisors, 93 N. Y. 397.) 

§ 43. Sidewalks and trees .— The commissioners of 
highways may, by an order in writing duly certified by a 
majority of them, authorize the owners of property adjoin¬ 
ing the highways, at their own expense, to locate and 
plant trees, and locate and construct sidewalks along the 
highways in conformity with the topography thereof, 
which order, with a map or diagram showing the location 
of the sidewalk and tree planting, certified by the commis¬ 
sioners, shall be filed in the office of the clerk of the town 
where the highway is located, within ten days after the 
making of the order. 

*(R. S., p. 1400, post , p. 917.) 

Revised from L. 1881, eh. 233. 

See § lo8, post', L. 1881, cli. 344, Appendix, post, providing a penalty for 
the mutilation of shade trees. 

On the side of the road the land owner has substantial rights of prop¬ 
erty both in the surface and in the soil. In addition to the ordinary ease¬ 
ments of light, air and access, he may, on a country highway, plant shade 
trees, cultivate the sides of the road and do anything to improve or 
beautify it or his own property so long as his acts do not impair the public 
light of passage. The state not only invites him to plant trees, but it 
encourages him to do so by granting to those who do this a substantial 
reduction in their road tax. (. Palmer v. Larchmont Electric Co.. 6 App 
Div. 12; Jackson v. Hathaway, 15 Johns. 447; Highway Law, § 44.) 


*So in the original. 





The Highway Law of New Yoke. 


45 


Abatement of tax for shade trees. 


The setting out of trees along the side of a highway has from time 
immemorial been recognized as a proper use of a highway. ( Edsall v. 
Howell, 86 Hun, 424. 

Under L. 1863, ch. 93, repealed hereby, owners of lands fronting on 
highways were given power to set out trees and make sidewalks without 
an order of the highway commissioners. By the saving clause of this 
act, § 181, no act done or right acquired before it took effect, shall be 
affected. ( Edsall v. Howell, 86 Hun, 424.) 

Sidewalks are, as has repeatedly been held, a part of the highway. The 
owner of adjoining territory has no greater duty in regard to keeping 
sidewalks in repair than he has in regard to other parts of the 
highway, unless such duty has been imposed upon him by some statute 
or contract. Therefore he is not liable for injuries resulting from a 
defective sidewalk. ( Village of Fulton v. Tucker, 3 Hun, 529; see, also, 
Clapper v. Town of Waterford, 131 N. Y. 382.) 

The setting out of trees or the building of a sidewalk in a highway by 
the owner of adjoining lands, is not an adverse possession as against the 
true owner of the fee in the highway. ( Bliss v. Johnson, 94 N. Y. 235.) 

§ 44. Abatement of tax for shade trees .—Any in¬ 
habitant liable to highway tax, who shall hereafter, pur¬ 
suant to such an order, transplant by the side of the high¬ 
way adjoining his premises, any forest shade trees, fruit 
trees, or any nut bearing trees, suitable for shade trees, 
shall be allowed by the overseers of the highways, or other 
officer having charge of the highway, in abatement of his 
highway tax, one dollar for each four trees set out; but 
all trees must have been set out the year previous to such 
allowance, and be living and well protected from animals 
at the time of the allowance, and not further than eight 
feet from the outside line of any highway three rods wide, 
and not more than one additional foot further therefrom, 
for each additional rod in width of highway, and not less 
than seventy feet apart, on the same side of the highway, 
if elms, or fifty feet, if other trees; trees transplanted by 
the side of the highway, in place of trees which have 
died, shall be allowed for in the same manner. Such 




46 


The Highway Law of New York. 


Sidewalk tax anticipated. 


abatement of highway tax to any person, shall not exceed 
one-quarter of his annual highway tax in any one year; 
but such abatement shall be allowed by the overseers of 
highways, or other officers having charge of the highway, 
annually, until it shall have equalled the whole number 
of trees set out, at the rate herein specified. 

Revised from L. 1883, ch. 371. 

See notes under § 43, ante. 

§ 45. Sideivalk tax anticipated .—The commissioners 
of highways of any town, may, upon the written applica¬ 
tion of a majority of the inhabitants in any highway dis¬ 
trict, subject to assessment for highway labor therein, 
authorize not more than one-quarter of the highway labor 
of the district, or of the commutation money received 
therefor, to be expended under the direction of the over¬ 
seer of highways of the district, in the construction, repairs 
and improvement of any sidewalks within the limits of the 
district, and may by writing signed by them, filed with 
the town clerk, authorize not more than one-fourth of the 
highway labor of the district, to be anticipated for not 
more than three years, for constructing, improving or 
repairing any such sidewalk; and thereupon any person 
or corporation, assessed for highway labor in the district, 
may, for such purpose, anticipate his or its assessment for 
highway labor for the term prescribed by the commis¬ 
sioners, and may perform such labor, under the direction 
of the overseer, within such time, or commute therefor. 

Revised from L. 1880, ch. 305, § 1, as amended by L. 1884, ch. 479. 

§ 46. Certificate of anticipation .—The overseer shall 
give to such person or corporation, upon the performance 
of such labor or commutation therefor, a certificate signed 
by him, showing the number of days labor so anticipated 
and worked, or commuted for by^such person or corpora- 





The Highway Law of Hew York. 


47 


Transfer of certificate. 


tion; and in each succeeding year, upon presentation of 
such certificate, the person or corporation shall be credited 
and allowed by the overseer of highways, with the per¬ 
formance of the number of days labor assessed for such 
year, until the credit shall equal the number of days 
stated in the certificate to have been anticipated, and 
shall endorse thereon a statement signed by him, showing 
the credit and allowance. 

Revised from L. 1880, eh. 305, § 2. 

§ 47. Transfer of certificate .—Such certificate may 
be transferred to any grantee, upon a voluntary grant of 
the real property upon which such highway labor is assess¬ 
able, and if such real property is transferred otherwise 
than by voluntary grant, it shall be deemed to have been 
transferred to the person succeeding thereto, and in the 
hands of any such transferee, it shall have the same effect 
as when held by the original owner. 

Revised from L. 1880, ch. 305, § 3. 

§ 48. Abatement of tax for watering trough .— 
The commissioners of highways shall annually abate three 
dollars from the highway tax of any inhabitant of a high¬ 
way district, who shall construct on his own land therein, 
and keep in repair a watering trough beside the public 
highway, well supplied with fresh water, the surface of 
which shall be two or more feet above the level of the 
ground, and easily accessible for horses with vehicles; but 
the number of such watering troughs in the district, and 
their location, shall be designated by the commissioners. 
In a town in which the highways are worked or repaired 
by the money system of taxation, the commissioners of 
highways shall annually issue to each person to whom 




48 


The Highway Law of New York. 


System of taxation defined. 


such an abatement is allowed, a certificate specifying the 
amount thereof. 

Revised from L. 1869, eh. 131, § 1, as amended by L. 1872, eh. 274, § 1. 
Amended by L. 1897, ch. 227, § 1. 

See L. 1869, ch. 131, Appendix, post, as to abatement of plank road tolls 
for establishing watering troughs. 


§ 49. System of taxation defined .—The system of 
taxation for working and repairing highways, as herein¬ 
before provided, shall be known as “The Labor System of 
Taxation/’ and the system hereinafter provided, shall 
be known as “The Money System of Taxation .’’ 

New. 

§ 50. Town may change its system .—Any town 
may change its system of taxation for working and repair¬ 
ing its highways, by complying with the following pro. 
visions relating thereto. 

Revised from L. 1873, ch. 395, § 1. 

§ 51. Vote thereon . — Upon the written request of 
twenty-five [.taxpayers of any town, the electors thereof 
may, at an annual town meeting vote by ballot upon the 
question of changing the system of taxation for working 
the highway: but no person residing in an incorporated 
village or "city, exempted from the jurisdiction of com¬ 
missioners of highways of the town, shall sign such 
request, or vote upon such question. 

Revised from L. 1873, ch. 395, § 2. Amendedby L. 1895, ch. 386. 

§ 52. When change to take effect .—When a town shall 
have voted to change the system of working and repairing 
the highways, as herein provided, such change shall not 
take effect until the next annual meeting of the board of 




The Highway Law of New York. 


49 


Annual tax under money system; certain villages exempt therefrom. 


supervisors, after the town meeting at which it was 
decided to make the change; and until such annual 
meeting of the board of supervisors the former system of 
repairing highways shall remain in force in such town. 
In each town of Westchester county such change shall be 
for a term not less than five years. 

Revised from L. 1873, ch. 395, § 10, as amended by L. 1888, ch, 240 t 
Amended by L. 1895, ch. 386. 


§ 53. Annual tax under money system; certain 
villages exempt therefrom .—Any town voting in favor 
of the money system, shall annually raise by tax, to be 
levied and collected the same as other town taxes, for the 
repair of the highways, an annual sum of money, which 
shall be equal to at least one-half the value at the com¬ 
mutation rates, of the highway labor which should be 
assessable under the labor system; but in any town in 
which there may be an incorporated village, which forms 
a separate road district, and wherein the roads and streets 
are maintained at the expense of such village, all property 
within such village shall be exempt from the levy and 
collection of such tax for the repair of highways of such 
town; and the assessors of such town are hereby required 
to indicate on the assessment roll the property included in 
such incorporated village, in a column separate from that 
containing a list of the property in the town not included 
in such village; and shall also place on the assessment roll 
the names of all persons liable to poll tax who are not resi¬ 
dents of such village, and the board of supervisors are 
directed to levy a tax of one dollar on each person liable to 
poll tax as thus indicated; but this act shall not apply to 
assessments made for damages and charges for laying out 
or altering any road, or for erecting or repairing any 
bridge in such town. The amount of such tax shall be 
4 




50 


The Highway Law of New York. 


Adoption of county road system. 


determined by the commissioners of highways and the 
town board, who shall certify the same to the board of 
supervisors, the same as any other town charge. The 
clerk of the board of supervisors of each county containing 
a town which has voted for the money system shall, on 
or before the first day of January of each year transmit to 
the state comptroller a statement certified by him, and 
signed and verified by the chairman of such board, stating 
the name of each town so voting, and the amount of 
money tax levied therein for the repair of highways during 
the preceding year. The comptroller shall draw his war¬ 
rant upon the state treasurer in favor of the treasurer of 
the county in which such town is situated, for an 
amount equal to twenty-five per centum of the amount so 
levied in each town. The county treasurer shall pay out 
the amount so paid to him on account of the money tax 
levied in any such town upon the order of the highway 
commissioner thereof, to be used by him, for the repair 
and permanent improvement of such highways therein, 
and in such manner as the commissioner of highways and 
town board may determine. The sum paid by the state 
to any town by virtue of this section shall not exceed, in 
any one year, one-tenth of one per centum of the taxable 
property of such town. 

Revised from L. 1873, eh. 395, §§ 3, 4, as amended by L. 1874, ch. 169, 
by and L. 1889, ch. 259. Amended byL. 1893, ch. 412, and by L. 1898, ch. 351. 

See L. 1871, ch. 171, Appendix, post, providing for the assessment on 
real estate lying partly within village limits. 

See L. 1895, ch. 717, Appendix, post, providing that all highway com¬ 
missioners of towns using the money system of taxation shall file their 
contracts with the town clerk. 


§ 54. (Adoption of county road system .)—The board 
of supervisors of any county may, by a vote of a majority of 
the members thereof, by resolution, adopt the county road 





The Highway Law of New York. 


51 


County engineer. 


system, and shall as soon as practicable after the adop¬ 
tion of such resolution, cause to be designated as county 
roads, such portions of the public highways in such 
county as they shall deem advisable, outside of the limits 
of any city in such county, and shall cause such designa¬ 
tion and a map of such county roads to be filed in the 
clerk’s office of such county; the roads so designated 
shall, so far as practicable, be leading market roads in 
such county. 

Added by L. 1893, ch. 333. Amended by L. 1895, eh. 375. 

See County Law, § 61, Appendix, post, as to the laying out of county 
roads by the board of supervisors. 


§ 55. ( County engineer .)—There shall be a county 
engineer in every such county, who shall be appointed b}? 
the board of supervisors thereof, and be removable at its 
pleasure. The term of office of each county engineer 
shall be three years, unless sooner removed, and his salary 
shall be fixed by the board of supervisors and be a county 
charge. 

Added by L. 1893, ch. 333. 

§ 56. (Eocpenscs, hoiv paid .)—The expenses of im¬ 
proving, repairing and maintaining the county roads of 
each county, shall be a county charge, and in any county 
in which during the past five years there has been ex¬ 
pended at least the sum of five hundred thousand dollars 
for macadamizing purposes, the expense of constructing, 
improving, maintaining and repairing such county roads, 
shall be annually apportioned by the board of supervisors 
of the county, upon the various towns and cities within 
the county, as the said board may deem just. The money 
necessary to improve, repair and maintain the county 
roads or to pay the principal and interest of any bonds 




52 


The Highway Law of New York. 


Issue of bonds, etc. 


issued as provided in the next section, shall be levied and 
collected at the same time and in the same manner as 
money for other county charges is levied and collected. 
The board of supervisors shall designate the amount of 
money to be expended upon each county road, and may 
make rules and regulations for the government of the 
county engineer and regulating the expenditure of such 
money. 

Added by L. 1893, eh. 333. Amended by L. 1895, eh. 375. 

§ 57. ( Issue of bonds, etc.) —The board of supervisors 
of such county may borrow money from time to time for 
the construction, maintenance and repair of the county 
roads in such county, and may issue the bonds or other 
evidences of indebtedness of the county therefor; but such 
bonds or other evidences of indebtedness shall not bear a 
rate of interest exceeding five per centum per annum, and 
shall not be for a longer term than twenty years, and 
shall not be sold for less than par. 

Added by L. 1893, eh. 333. 

§ 58. ( County roads undev charge of supervisors 
and county engineer.) —The county roads in any county 
shall be exclusively under the jurisdiction of the board 
of supervisors and the county engineer of the county, and 
exempt from the jurisdiction of the highway officers or 
officers performing the duty of highway commissioners of 
the several towns and villages in which such county 
roads are located. The system of taxation for working 
and repairing the highways other than the county roads 
in a town in a county in which the county road system is 
adopted, shall be the mone}? system of taxation, provided, 
however, that in the county of Queens, the system as now 
provided by special act shall be continued. 

Added by L. 1893, eh. 333. Amended by L. 1895, ch. 375. 




The Highway Law of New York. 


~ o 
OD 


Proceeds of county bonds. 


§ 59a. {Proceed# of county bonds .)—If the proceeds 
of any county bonds issued for the construction of certain 
specified highways shall exceed the amount necessary for 
the construction of said highways, the board of super¬ 
visors may, in their discretion, apply such excess or any 
part thereof to the construction and improvement of other 

roads already adopted into the county road system; or to 

% 

the maintenance of the roads for the construction of 
which said bonds were issued; or to the payment of 
interest or principal, or both, of said bonds. 


Added by L. 1S9S. eh. 641. 




54 


The Highway Law of New York. 


Duties of overseers. 


ARTICLE III. 

The Duties of Overseers of Highways, and the Per¬ 
formance of Highway Labor. 

Section 60. Notice to work. 

61. Notice to non-residents. 

62. Commutation. 

63. Teams and implements, j 

64. Substitutes. 

65. Penalties for neglect to work or commute. 

66. Assessment for unperformed labor. 

67. Penalty for refusal of overseer to provide list. 

68. Collection of arrearages for unperformed labor. 

69. Annual return of overseers. 

70. Noxious weeds in highway. 

71. Overseers to notify occupant to remove weeds. 

72. Abatement of tax for removal of fence. 

73. Abatement of tax for street lamps. 

74. Rebate of tax for using wagon tires of certain width. 

Section 60. Notice to work .—Every overseer of high¬ 
ways shall give at least twenty-four hours’ notice to all 
residents of his district, and corporations assessed to work 
upon the highways therein, of the time and place at which 
they are to appear for that purpose, and with what teams 
and implements, and that they will be allowed at the 
rate of one day for every eight hours of work on the high¬ 
ways, between seven o’clock in the forenoon and six 
o’clock in the afternoon. The notice to corporations shall 
be served personally on an agent thereof residing in the 
town, if any, or if none, by filing the notice in the office 
of the town clerk, at least five days before the labor shall 
be required; and any number of days not exceeding fifty, 





The Highway Law of New York. 


55 


Notice to non-residents. 


may be required to be performed by any such corporation 
in any one day. 

Revised from L. 1837, ch. 431, § 2, and from 1 R. S., eh. 16, tit. 1, art. 
3, § 32, as amended by L. 1876, ch. 348. 

See Rinehart v. Young , 2 Lans. 354. 

§ 61. Notice to non-residents .—Every overseer of 
highways shall give at least five days’ notice to every resi¬ 
dent agent of every non-resident land-holder, whose lands 
are assessed, of the number of days such non-resident is 
assessed, and the time and place at which the labor is to 
be performed. If the overseer cannot ascertain that such 
non-resident has an agent within the town, he shall file 
a written notice in the office of the town clerk, at least 
twenty days before the time appointed for performing such 
labor, containing the names of such non-residents, when 
known, and a description of the lands assessed, with the 
number of days’ labor assessed on each tract, and the time 
and place at which the labor is to be performed. 

Revised from 1 R. S., ch. 16, tit. 1, art. 3, §§ 33, 34. 

See § 4, sub. 6, ante , as to the commissioners requiring such notice to be 
given; § 34, ante , as to delivery of taxable list to overseers. 

§ 62. Commutation .—Every person and corporation 
shall work the whole number of days for which he or it 
shall have been assessed, except such days as shall be 
commuted for, at the rate of one dollar per day, and such 
commutation money shall be paid to the overseers of high¬ 
ways of the district in which the labor shall be assessed, 
within at least twenty-four hours before the time when the 
person or corporation is required to appeal and woik on 
the highways; but any corporation must pay its commu¬ 
tation money to the commissioners of highways of the 
town, who shall pay the same to the overseers of the dis¬ 
tricts respectively, in which the labor commuted for was 




56 


The Highway Law of New York. 


Teams and implements. 


assessed, except in the counties of Chemung, Onondaga, 
Columbia, Wayne, Erie, Franklin, Sullivan, Tioga, Sara¬ 
toga, Broome and Orange, where such commutation 
money shall be paid on or before the first day of June of 
each year, to the commissioner or commissioners of high¬ 
ways of the town in which the labor shall be assessed, and 
such commutation money shall be expended by the 
commissioner or commissioners of highways upon the 
roads and bridges of the town as may be directed by the 
town board. 

Revised from L. 1837, eh. 431, § 3; from L. 1877, ch. 344, § 1, as amended 
by L. 1878, ch. 44 ;from 1 R. S., ch. 16, tit. 1, art. 3, § 35, 36, as variously 
amended; from L. 1886, ch. 770, § 1. Amended by L. 1895, ch. 579, by L. 
1896, ch. 973, and by L. 1897, ch. 334. 

See § 33, sub. 3, ante , as to commutation by corporation. 

Under laws of 1873, ch. 431, an overseer of highways had a right to 
apply and expend all commutation moneys received from individuals 
residing in his district on the roads and bridges in that district; but he 
had no right without authority from the commissioners, to expend any 
part of the commutation money received from moneyed or stock corpor¬ 
ations; for the commissioners were given control over such moneys, and 
might expend them in any district in the town. 

The money might be paid in the first instance to one of the commis¬ 
sioners; if it were paid to an overseer, he received for them and it was his 
duty to pay it over to them. Failing to perform this duty, they were 
entitled to demand it. 

Something similar now seems to be the law in certain counties, as seen 
by the above section. ( Foivler v. Westervelt, 40 Barb. 374.) 

See People ex rel. Scott v. Supervisors , 8 N. Y. 325. 

§ 63. Teams and implements .—Every overseer of 
highways may require a team, or a cart, wagon or plow, 
with a pair of horses or oxen, and a man to manage them, 
from any person having the same within his district, who 
shall have been assessed three days or more, and who 
shall not have commuted for his assessment; and the per- 





The Highway Law of New York. 


57 


Substitutes. 


son furnishing the same upon such requisition, shall be 
entitled to a credit of three days for each day’s service 
therewith. 

Revised from 1 R. S., eh. 16, tit. 1, art. 3, § 37. 

§ 64. Substitutes .—Every person or corporation assessed 
to work on the highways, and warned, who does does* not 
commute therefor, may appear in person or by an able 
bodied man as a substitute. A day’s labor shall be eight 
hours of work, and every person or corporation assessed 
more than one day shall be allowed to work ten hours in 
each day. 

Revised from 1 R. S., ch. 16, tit. 1, art. 3, § 38 as omendedby L. 1880, ch. 
308, § 3. 

§ 65. Penalties for neglect to work or commute .— 
Every person or corporation assesed highway labor, who 
shall not commute, and who shall not appear and 
work when duly notified, shall be liable to a 
penalty of one dollar and fifty cents for every day 
he shall so fail to appear and work; and for wholly omit¬ 
ting to comply with any requisition to furnish a team, 
cart, wagon, implements and man, he shall be liable to 
a penalty of five dollars for each day’s omission, and for 
omitting to furnish either a cart, wagon, plow, team or 
man to manage the team, he shall be liable to a penalty 
of one dollar and fity cents for each day’s omission; and if 
any person shall after appearing, remain idle, or not work 
faithfully, or hinder others from working, he shall be lia¬ 
ble to a penalty at the rate of one dollar and fifty cents a 
day for each hour. The penalties herein imposed, may 
be recovered by action by the overseer of highways as 
such, and, when collected, shall be expended or disposed 
of by the overseer in the same manner as commutation 


*So in the original. 







58 


The Highway Law of New York. 


Assessment for unperformed labor. 


moneys. The penalties, when recovered, shall be applied 
in satisfaction of the labor assessed, for omission to per¬ 
form which, the penalties were respectively imposed. 
The overseer of highways may excuse any omission to 
perform labor when required, if a satisfactory reason shall 
be given therefor; but the acceptance of any such excuse 
shall not exempt the person excused from commuting for, 
or working the whole number of days for which he shall 
have been assessed during the year.. 

Revised from L. 1837, eh. 431, §§ 4, 5 and from 1 R. S., eh. 16, tit. 1, art. 
3, §§ 39-46, as amended by L. 1880, eh. 308. 

A private suit will not lie against an overseer of highways, for adjudg¬ 
ing a party in default, and making his complaint. ( Freeman v. Cornwall , 
10 Johns. 470.) 

See Potter v. Benniss , 1 Johns, 515, as to the proper action at common 
law to recover back money collected by an overseer from one in default. 

See Rinehart v. Young , 2 Lans. 354; Bouton v. Neilson, 3 Johns. 474; 
Walker v. Moseley , 5 Den. 102; Thayer v. Lewis , 4 Den. 269. 

§ 66. Assessment for unperformed labor .—Every 
overseer of highways shall between the fifteenth day of 
September and the first day of October of each year, make 
out and deliver to the commissioner of highways of his 
town, a list of all persons and corporations who have not 
worked out, or commuted for their highway assessment, 
with the number of days not worked or commuted for by 
each, charging for each day in such a list, at the rate of 
one dollar and fifty cents a day; and also a list of all the 
lands of non-residents and persons unknown, which were 
assessed on his warrant by the commissioner of highways, 
or added by him, on which the labor assessed has not 
been performed or commuted for, and the number of days’ 
labor unpaid by each, charging for the same at the rate 
of one dollar and fifty cents per day, which list shall be 
accompanied by the affidavit of the overseer, that he has 
given the notice required, to appear and work, and that 




The Highway Law of New York. 


59 


Penalty for refusal of overseer to provide list. 


the labor specified in the list returned, has not been per¬ 
formed or commuted, and it shall be the duty of the com¬ 
missioner of highways to collect and present such lists to 
the town board of his town at the meeting held on the 
Thursday next preceding the annual meeting of the board 
of supervisors. The town board shall certify the amount 
of unpaid taxes so returned to them by the commissioner 
of highways to the board of supervisors. 

Revised from 1 R. S., ch. 16, tit. 1, art. 3, §§ 47, 49, as variously amended , 
Amended by L. 1898, ch. 350. 

See Colman v. ShattucJc, 2 Hun, 500. 

§ 67. Penalty for refusal of overseer to provide 
list .—If any overseer shall refuse or neglect to deliver 
such list to the commissioner of highways, or to make the 
affidavits herein directed, he shall for every such offense, 
forfeit the sum of ten dollars and the amount of taxes for 
labor remaining unpaid, at the rate of one dollar for each 
day assessed. The commissioner of highways shall, in 
case of such refusal or neglect, recover such penalty and 
apply the amount recovered in making and improving the 
highways and bridges of the delinquent overseers district. 

Revised from 1 R. S., ch. 16, tit. 1, art. 3, § 48. Amended by L. 1898, 
ch. 350. 

§ 68. Collection of arrearages for unperformed 
labor .—Each board of supervisors, at its annual meeting 
in each year, shall cause the amount of such arrearages 
for highway labor returned to them, estimating each day s 
labor at one dollar and fift} 7 cents a day, to be levied and 
collected from the real or personal estate of the person, 
corporation, or from the non-resident real estate, specified 
in such list, to be collected by the collectors of the several 
towns, in the same manner that other town taxes aie col¬ 
lected, and shall order the same, when collected, to be 
paid over to the commissioners of highways of the town 




60 


The Highway Law of New York. 


Annual return of overseers. 


wherein the same is collected, to be by them applied to¬ 
ward the construction, repairs and improvement of the 
highways and bridges in the district in which the labor 
was originally assessed. 

Revised from 1 R. S., eh. 16, tit. 1, art. 3, § 50, as variously amended. 

See Colman v. ShattucTc, 2 Hun, 500. 

§ 69. Annual return of overseers .—Every overseer 
of highways shall, on the second Tuesday nest preceding 
the time of holding the annual town meeting in his town, 
within the year for which he is elected or appointed, 
render to one of the commissioners of highways of the 
town, an account in writing, verified by his oath, and 
containing, 

1. The names of all persons assessed to work on the 
highways in the district of which he is overseer. 

2. The names of all those who have actually worked on 
the highways, with the number of days they have so 
worked. 

3. The names of all those from whom penalties have 
been collected, and the amounts thereof. 

4. The names of all those who have commuted, and the 
manner in which the moneys arising from penalties and 
commutations have been expended by him. 

5. A list of all persons whose names he has returned to 
the supervisor as having neglected or refused to work out 
their highway assessments, with the number of days and 
the amount of tax so returned for each person, and a list 
of all the lands which he has returned to the supervisor 
for non-payment of taxes, and the amount of tax on each 
tract of land so returned; and he shall then and there pay 
to the commissioners of highways, all money remaining in 
his hands unexpended, to be applied by them in making 
and improving the highways and bridges of the town, in 
such manner as they shall direct; and if he shall neglect 




The Highway Law of New York. 


61 


Noxious weeds in highway. 


or refuse to render such account, or if, having rendered 
the same, he shall refuse or neglect to pay any balance 
which then may be due from him, he shall for every such 
offense, forfeit the sum of ten dollars. 

Revised from 1 R. S., ch. 16, tit. 1, art. 3, §§ 51, 53, as amended by L. 
1865, ch. 522. §§ 4, 5. 

§ 70. Noxious weeds in highway .—Every person or 
corporation, owning or occupying, under a lease for one 
or more years, any cultivated or inclosed lands, abutting 
upon any highway, shall cause all noxious weeds, briers, 
and brush growing upon such lands within the bounds of 
the highway, to be cut or destroyed between the fifteenth 
day of June and the first day of July, and between the 
fifteenth day of August and the first day of September, in 
each and every year; but boards of supervisors may fix a 
different period or periods, for such cutting or destruction 
in their respective counties. No person shall place or 
cause to be placed, any noxious weeds, or the seeds of 
such weeds, within the bounds of any public highway. 
Any willful violation of this section, shall subject the 
person or corporation so offending to a penalty of ten 
dollars for each offense. 

Revised from L. 1878, ch. 49, §§ 1, 3. 

See notes under § 20, ante. 

§ 71. Overseers to notify occupants to remove weeds . 
_The overseers of every highway district shall give writ¬ 
ten notice to any occupant of the premises to cut all 
weeds, briers and brush growing within the bounds of 
the highway; if such occupant shall not cut such weeds, 
briers and brush as so required within ten days after re¬ 
ceiving such notice, such overseer shall employ some one 
to do such work, and and* make a report under oath to 


*So in the original. 





62 


The Highway Law of New York. 


Abatement of tax for removal of fence. 


the commissioners of highways, of the amount expended 
by him thereon, and the ownership and occupancy of the 
several parcels of land against which the labor was per¬ 
formed, on or before the first day of November in each 
year; the commissioners of highways shall certify these 
statements to the supervisor of the town, and the super¬ 
visor shall lay the same before the board of supervisors at 
its next annual meeting, and such board shall include the 
amounts included in such statements in the taxes assessed 
upon the lands, upon or against which the labor was 
performed, the same to be collected with the other taxes, 
and paid over upon the order of the supervisor to the 
parties entitled thereto. 

Revised from L. 1878, ch. 49, § 5, as amended by L. 1886, ch. 291, and 
by L. 1887, ch. 604. 

See notes under § 20, ante. 

§ 72. Abatement of tax for removal offence .—Any 
inhabitant liable to a highway tax, who shall remove 
from lands owned or occupied by him, the fence along any 
public highway, for the purpose of preventing the drift¬ 
ing of snow into such highway, shall be allowed by the 
overseer of highways, in abatement of his highway tax, 
the time actually expended in removing such fence, and 
in replacing the same, pursuant to the directions of the 
overseer of highways. 

Revised from L. 1875, ch. 196, § 1. 

See notes under § 21, ante. 

§ 73. Abatement of tax for street lamps .—Any per¬ 
son or corporation owning or holding real estate, or other 
property liable to highway tax, except in the county of 
Kings, other than in cities and incorporated villages, who 
shall, with the consent of the overseer of highways in 
charge of the district in which such property is assessed, 




The Highway Law of New York. 


63 


Rebate of tax for using wagon tires of certain width. 


and in such places as he may direct, erect a street lamp, 
and cause the same to be properly attended to and kept 
burning during such hours of each night as the overseer 
of highways may direct, shall be allowed by the overseer 
of highways, in abatement of such highway tax, six dol¬ 
lars annually, or such portion of six dollars as the annual 
highway taxes upon such real estate or other property 
may be. 

Revised from L. 1884, ch. 251, § 1. 

§ 74. Rebate of tax for using wagon tires of cer¬ 
tain width .—Every person who, during the year ending 
June first, eighteen hundred and ninety-three and each 
succeeding year thereafter, uses on the public highways of 
this state only wagons or vehicles with wheels upon which 
two or more horses are used the tire of which shall be not 
less than three inches in width, shall receive a rebate of 
one-half of his assessed highway tax for each such year, not 
exceeding however in any one year the sum of four dol¬ 
lars for four day's labor. The right to such rebate shall 
not be affected by the use upon the public highways of 
buggies, carriages or platform spring wagons carrying a 
weight not exceeding one thousand pounds. Upon mak¬ 
ing an affidavit showing that he has complied with the 
provisions of this section during any such year, he shall 
be credited by the overseer of highways of the road dis¬ 
trict in which he resides or any road district where he is 
assessed with such rebate. Such affidavit may be taken 
before any overseer of highways who is hereby authorized 
to administer such oath. 

Added by L. 1893, eh. 468. 




64 


The Highway Law of New York. 


Laying out, etc., highways and private roads. 


ARTICLE IV. 

Laying out, Altering and Discontinuing Highways, 
and Laying out Private Roads. 

Section 80. Highways by dedication. 

81. Survey. 

82. Application. 

83. Application for commissioners. 

84. Appointment of commissioners, and their duties. 

85. Notice of meeting. 

86. Decision of commissioners in favor of application. 

87. Damages in certain cases, how estimated. 

88. Decision of commissioners denying application. 

89. Motion to confirm, vacate or modify. 

90. Limitation upon laying out highways. 

91. Laying out highways through burying grounds. 

92. Costs, by whom paid. 

93. Damages assessed, and costs to be audited. 

94. When officers of different towns disagree about highway. 

95. Difference about improvements. 

98. Highways in two or more towns. 

97. Laying out, dividing and maintaining highway upon 'town 

line. 

98. Final determination, how carried out. 

99. Highways abandoned. 

100. Highways by use. 

101. Fences to be removed. 

102. Penalty for falling trees. 

103. Fallen trees to be removed. 

104. Penalty for obstruction or encroachment. 

105. How removed, and liability for not removing. 

106. Private road. 

107. Jury to determine necessity, and assess damages. 





The Highway Law op New York. 


65 


Highways by dedication. 


Section 108. Copy, application and notice delivered to applicant. 

109. Copy and notice to be served. 

110. List of jurors. 

111. Names struck off. 

112. Place of meeting. 

113. Jury to determine and assess damages. 

114. Their verdict. 

115. Value of highway discontinued. 

116. Papers to be recorded in town clerk's office. 

117. Damages to be paid before opening the road. 

118. Fees of officers. 

119. Motion to confirm, vacate or modify. 

120. Costs of new hearing. 

121. For what purpose private road to be used. 

122. Highways or roads along division lines. 

123. Adjournments. 


Section 80. Highways by dedication .—Whenever land 
is dedicated to a town for highway purposes therein, the 
commissioners of highways in such town may, either with 
or without a written application therefor, and without 
expenses to the town, make an order laying out such high¬ 
way, upon tiling and recording in the town clerk's office with 
such order a release of the land from the owner thereof. 
A highway so laid out must not be less than two rods in 
width. Section ninety of this chapter does not apply to 
a highway by dedication. Such commissioners of high¬ 
ways may also, upon written application and with the 
written consent of the town board, make an order laying 
out or altering a highway in their town, upon filing and 
recording in the town clerk's office, with such application, 
consent and order, a release from ail damages from the 
owners of the lands taken or affected thereby, when the 
consideration for such release, as agreed upon between 
such commissioners and owners, shall not in any one case, 
5 




66 


The Highway Law of New York. 


Highways by dedication. 


from any one claimant, exceed one hundred dollars, and 
from all claimants five hundred dollars. An order of the 
commissioners as herein provided shall be final. 

Revised from L. 1880, ch. 114, §§ 2, 3. Amended by L. 1897, ch. 204. 

Dedication and Acceptance. 

See Village Law, § 144, Appendix, post, as to dedication of land for 
village streets. 

Public highways may be created in four ways: (1) By proceedings under 
the statute; (2) by prescription or user for twenty years; (3) by dedica¬ 
tion through offer and implied acceptance; (4) by dedication through off el¬ 
and actual acceptance. ( Cohoes v. D. c Sc H. C. Co., 134 N. Y. 397, and 
authorities cited; Town of Corning v. Head, 86 Hun, 12.) 

Land may be dedicated to the use of the public for a highway without 
any writing. ( Cook v. Harris, 61 N. Y. 448.) 

Oral consent of the owner of lands to the laying out of a highway is 
valid unless revoked before the laying out. {Marble v. Whitney, 28 N. Y. 
297.) 

Lands dedicated by the owner to public use as streets do not become 
public highways until accepted by commissioners. {Oswego v. Canal Co , 
6 N. Y. 257; Cohoes v. D. & H. C. Co., 134 N. Y. 397.) 

To constitute a public highway by dedication there must not only be an 
absolute dedication, but an acceptance and formal opening by the proper 
authorities or by user. {People v. Underhill, 144 N. Y. 316; contra, Cle¬ 
ments v. West Troy, 10 How. Pr. 199.) 

Acceptance may be proved by long public use or by the acts and con¬ 
duct of the public authorities recognizing and adopting the highway. 
{People v. Loelifelm, 102 N. Y. 1; Cook v. Harris, 61 N. Y. 448; Holdane 
v. Cold Spring, 21 N. Y. 474; McMannis v. Butler, 51 Barb. 436; Denning 
v. Roome , 6 Wend. 651; Hunter v. Trustees, 6 Hill, 407; Abbott v. Cottage 
City, 143 Mass. 521, and authorities cited; McCormick v. City of Amster¬ 
dam, 43 St. Rep. 604; People v. Underhill, 144 N. Y. 316.) 

A dedication once made and accepted cannot be revoked. ( Cook v. 
Harris, 61 N. Y. 448; Cohoes v. D. & H. C. Co., 134 N. Y. 397.) 

A dedication must, within a reasonable time, be followed by an accept¬ 
ance; and the owner may, if not accepted within a reasonable time, recall 
the dedication; and he may at any time recall the dedication, if no rights 
have attached intermediate his act. What is a reasonable time must 




The Highway Law of New York. 


67 


Highways by dedication. 


depend upon the particular circumstances of the case. (Matter of Open¬ 
ing of Beck Street, 19 Misc. 571; Lee v. Sandy Hill, 40 N. Y. 442.) 

A dedication may be revoked before acceptance, but not after a user 
of more than twenty years. (Eckerson v. Haverstraiv, 6 App. Div. 302.) 

Where an owner of land dedicated it to the public for a highway but 
died before acceptance thereof, her death was held to be a revocation of 
the proposed dedication. People v. Kellogg, 67 Hun, 546.) 

Circumstances constituting evidence of dedication and acceptance. 
(Cook v. Harris, 01 N. Y. 44S; Rozell v. Andrews, 108 N Y. 350; Iselin v 
Starin, 144 N. Y. 453.) 

Y/hat is sufficient evidence of a dedication to the public. (Wiggins v. 
Tallmadge , 11 Barb. 457.) 

Insufficient evidence of a dedication to the public use. (Matter of Beach 
Ave., 70 Hun, 351.) 

There is sufficient evidence of dedication where streets have been used 
for highway purposes for more than twenty years and have been worked 
by the public authorities. (Eckerson v. Haverstraw, 6 App. Div. 102.) 

Where an owner of land files a map dividing such land into blocks, 
throws the streets open and constructs fences, there is sufficient evidence 
of dedication of the streets to public use. (Eckerson v .Haverstraw, 6 App. 
Div. 102.) 

Where a city begins proceedings to condemn property for a street, it 
admits that the land has not been dedicated for a public highway by the 
owner. (Matter of Extension of Ethel St., 3 Misc. 403.) 

An order discontinuing a highway will be taken to be evidence of non- 
acceptance thereof. (Matter of Opening of Beck Street, 19 Misc. 571.) 

Where a common council accepts by resolution streets laid out on a 
map and constructs a sewer in a portion thereof, the question of dedica¬ 
tion and acceptance may go to the jury. (McVee v. 11 atertown , 92 Hun, 
306.) 

The use of a private way by the public does not make it a public high¬ 
way without proof of dedication and acceptance. (Palmer v. Palmer, 
150 N. Y. 139.) 

Where a highway has been altered by consent of the owner of the land 
and has been used by the public for twenty-six years, it is a public high¬ 
way although its boundaries have not been determined by the highway 
commissioners, and will be assumed to be of the same width as the original 
road. (Wakeman v. Wilbur, 147 N. Y, 6 >7.) 





68 


The Highway Law of New York. 


Highways by dedication. 


The power of a town to take lands for highway purposes by voluntary 
conveyance implies the power to take such interest as the necessity of 
the case may require. {Hughes v. Bingham. 135 N. Y. 347.) 

When a highway is once shown to exist, it is presumed to continue 
until it is shown to exist no longer. {Cohoes v. D. & H. C. Co., 134 N. 
Y. 397; Beckwith v. Whalen, 65 N. Y. 322; Driggs v. Phillips, 103 N. Y. 
77.) 

Laying out, Altering and Discontinuing Highways; Compensation 

to Land Owners. 

See Constitution, Art. 3, § 18, Appendix, post, prohibiting special legis¬ 
lation on this subject; see Indian Law, § 12, Appendix, post, as to laying 
out highways on Indian reservation; Code of Civil Procedure, §§ 3357- 
3384, as to proceedings for the condemnation of real property; L. 1817, 
ch. 83, Appendix, post, as to power of highway commissioners over state 
roads; L. 1883, ch. 113, Appendi: post, as to the alteration of highways, 
streets and bridges in incorpox_~ villages; Canal Law, § 110, Appendix, 
post, as to the alteration of highways in improving the canals; L. 1893, 
ch. 607, Appendix, post, providing for widening highways between cities 
and towns; L. 1895, ch. 611, and L. 1896, ch. 464, Appendix, post, as to 
discontinuance of highways where $300,000 has been spent for macada¬ 
mizing purposes and damages therefor; L. 1897, ch. 286, Appendix, post, 
as to widening and improving highways in towns of more than 8,000 
inhabitants and containing villages of certain population; L. 1893, cli. 
582, Appendix, post, as to the improvement of highways in Kings county; 
L. 1890, ch. 555, Appendix, post, as to the improvement of highways in 
Richmond county; L. 1898, ch. 45, and L. 1898, ch. 71, Appendix, post, as 
to the construction of bicycle paths in Cattaraugus and Monroe counties, 
respectively; L. 1897, ch. 596, Appendix, post, as to the acquisition of 
turnpike and plank roads by counties and villages. 

See also, L. 1898, ch. 115, Appendix, post, known as the “Good Roads 
Act.” 

Discussion of section 18 of article 3 of the Constitution forbidding the 
legislature to pass any private or local act laying out highways. 
Whether a particular stream may be declared to be a public highway. 
{Matter of Burns, 16 App. Div. 507; De Camp v. Thomson, 16 App. Div. 
528; Matter of Burns, 155 N. Y. 23.) 

Powers of legislature before constitutional amendment of 1874. {Ex 
parte Commissioners, 51 Barb. 277; Ex parte Central Park Extension , 10 




Tiie Highway Law of New York. 


69 


Highways by dedication. 


Abb. Pr. 56; People v. McDonald, 4 Hun, 187; People v. Supervisors, 112 
N. Y. 585.) 

The legislature has power to open a highway without the instrumen¬ 
tality of highway commissioners. (People v. McDonald , 4 Hun, 187.) 

The legislature may regulate by special act the widening of streets. 

(.People v. McDonald , 69 N. Y. 362; People v. Lohnas , 54 Hun, 604.) 

Where an act authorized land to be taken, under certain conditions, 
the Legislature could not afterwards abolish those conditions. (Matter 
of R. R. Co., 58 Hun, 497.) 

An act is unconstitutional which authorizes more land to be taken than 
is required for the opening of a street. (Matter of Albany Street , 11 Wend. 
149.) 

An act is unconstitutional which authorizes land to be taken for a high 
way without compensation. (Wallace v. Karlenowefski, 19 Barb. 118; 
Gould v. Glass, 19 Barb. 179; People v. Supervisors, 4 Barb. 64.) 

Legislature cannot reduce width of road and vest surplus in former 
owner where he has already received compensation. (People v. Com - 
missioners, 53 Barb. 70.) 

Constitutionality of act authorizing construction of highways over rail¬ 
road tracks without compensation. (Railroad Co. v. Brownell, 24 N. Y. 
345.) 

Compensation for value of buildings erected after resolution laying out 
street is passed. (Matter of Wall Street . 17 Barb. 617.) 

Provisions of State Constitution as to mode of ascertaining compensa¬ 
tion are for sole benefit of land owner and may be waived by him. (MaU 
ter of Hand Street, 55 Hun, 132.) 

Method of ascertaining damages to adjacent owners by the closing of a 

road. (Matter of Barclay, 91 N. Y. 430.) 

Compensation of city for lands owned by it in fee. (Matter of JSinth 

Avenue, 45 N. Y. 729.) 

The passage of an ordinance to authorize the opening of a new street, is 
the exercise of a legislative power. (Wiggin v. New York, 9 Paige, 16.) 

Neither the legislature !nor a municipal corporation may close a street 
within the municipality without making compensation to an abutting 
owner; but it seems otherwise where there is other access to the lot of 
such owner. (Egerer v. Railroad Co., 41 St. Rep. 488; Wilson v. Rail- 
road Co., 2 Supp. 65; Fearing v. Invin, 55 N. Y. 486; Ins. Co. v. Stevens, 




70 


The Highway Law of New York. 


Highways by dedication. 


101 N. Y. 411; Holloway v. Delano, 40 St. Rep. 702; Brielc Co. v. Haver- 
straw, 42 St. Rep. 616.) 

Commissioners of highways have power to vacate a road upon their own 
motion when it has become useless and unnecessary. ( People v. Pike, 18 
How. Pr. 70; People v. Nichols, 51 N. Y. 470.) 

Commissioners of highways may alter public highways without the 
intervention of a jury. {People v. McNeil, 2 S. C. 140; People v. Jones, 63 
N.Y. 306.) 

Before a highway through improved land can be altered, a certificate of 
necessity is required, although the owner has released his damages. {Peo¬ 
ple v. Jones, 63 N. Y. 306.) 

Where a new road has been regularly laid out, it cannot be discontinued 
as an old one before it has been opened and used. {People v. Grisivold, 
67 N. Y. 60.) 

Change of grade. {Cunningham v. Fitzgerald, 138 N.Y. 165; Rauenstein 
v. Railroad Co., 136 N. Y. 528, and cases cited; Matter of Smiddy, 47 St. 
Rep. 409; Smith v. Village of White Plains, 67 Hun, 81; Whitmore v. Vil¬ 
lage of Tarrytown, 137 N. Y. 409.) 

Discontinuance of proceedings to open street or highway before final 
termination. {Matter of Dower Street, 18 Johns, 506; Martin v. Brooklyn, 

1 Hill; 545; Military Parade Ground, [2 Hun, 374; s. c., 60 N. Y. 319; 
Matter of Anthony Street, 20 Wend. 618; Central Park Case, 12 Abb. Pr. 
107; Matter of Beekman Street, 20 Johns. 269; Haivkins v. Rochester, 1 
Wend. 53; People v. Syracuse, 20 How, Pr. 491; Matter of Washington 
Park, 56 N. Y. 144; Peoples. Commissioners, 1 S. C. 193; Peoples. Grisivold, 
67 N. Y. 59; People v. Mills, 8 St. Rep. 754; People v. Common Council of 
Syracuse, 78 N. Y. 56; Matter of Elmwood Avenue, 10 St. Rep. 272; Matter 
of Ferris, 10 St. Rep. 480; Matter of Lexington Avenue, 40 St. Rep. 778.) 

Common council of New York may not reduce width of street by 
authorizing lot-owners to fence in part thereof. {Lawrence v. New York, 

2 Barb. 577.) 

Ch. 604, L. 1874, relating to New York City. {Matter of Spuyten Duyvil 
Parkway, 67 How. Pr. 341.) 

Ch. 697, L. 1867, relating to the closing of streets in New York City. 
{Matter of Barclay, 91 N. Y. 430; People v. Board of Assessors, 51 Hun, 
407; Fearing v. Irwin, 55 N. Y. 486; Peters v. Carleton, 15 St. Rep. 980; 
People v. Asten, 62 N. Y. 623; 49 How. Pr. 405; People v. Greene, 62 N. Y. 
624.) 




The Highway Law of New York. 


71 


Survey. 


Ch. 559, L. 1871, relating to Brooklyn. (McCormack v. Brooklyn , 108 N. Y. 
49; Donnelly v. Brooklyn, 121 N. Y. 9.) 

City Charter of Buffalo. (Broezel v. Buffalo, 6 Supp. 723.) 

City Charter of Rochester. (Elwoocl v. Rochester , 122 N. Y. 229; Starr 
v. Rochester, 6 Wend. 504; Cuyler v. Rochester, 12 Wend, 165.) 

City Charter of Poughkeepsie. (Matter of Washington Street, 38 St. 
Rep. 346.) 

The act of 1884 relating to Schenectady. (Weinckiev. Railroad Co., 39 
St. Rep. 584.) 

See Bucholz v. Railroad Co., 66 Hun, 377; Excelsior Brick Co. v. Haver- 
straw, 50 St. Rep. 513; Matter of Opening Rogers Avenue, 29 Abb. N. C. 
361; Peters v. New York, 8 Hun, 405; Matter of North Third Avenue , 3 
Supp. 641; Matter of Commissioners, 25 St. Rep. 231; Matter of Busliwick 
Avenue , 48 Barb. 9; Baker v. Oneonta, 15 W. D. 224; Sage v. Brooklyri, 8 
Abb. N. C. 279; Ex parte Manhattan Co., 22 Wend. 653; People v. Judges, 
24 Wend. 249; Matter of Extension of Ethel Street, 3 Misc. 403; Phillips v. 
Schumacher, 10 Hun, 405; Foot v. Stiles, 57 N. Y. 399; Miller v. Brown , 
56 N. Y. 383; People v. Supervisors , 20 N. Y. 252. 

§ 81. Survey .— Whenever the commissioners of 
highways shall lay out any highway, either upon applica¬ 
tion to them or otherwise, they shall cause a survey thereof 
to be made, and shall incorporate the survey in an order 
to be signed by them, and to be filed and recorded in the 
office of the town clerk, who shall note the time of record¬ 
ing the same. 

Revised from 1 R. S., ch. 16, tit. 1, art. 4, § 55, and from L. 1880, ch. 114, 
§3 2, 3. 

See County Law, § 72, Appendix, post, providing that supervisors may 
direct commissioners of highways to survey and make records of any 
highways. 

The order laying out the highway must either be signed by all the com¬ 
missioners or must show that they were all notified to participate. (Fitch 
v. Commissioners, 22 Wend. 132; People v. Hynds, 30 N. V. 4*0; s. c. 27 
Barb. 94; People v. Williams, 36 N. Y. 441; Simmons v. Sines, 4 Abb. 
Dec. 246; Matter of Summit Street, 3 How. Pr. 26; Matter of Church 
Street, 49 Barb. 455; Christy v. Newton, 60 Barb. 332; Chapman v. Swan, 65 




12 


The Highway Law of New York. 


Survey. 


Barb. 210; Pratt v. People, 13 Hun, 664; Stewart v. Wallis, 30 Barb. 344.) 

One commissioner may not authorize another to sign his name to the 
order. ( Todd v. Todd, 3 Hun, 298.) 

All the commissioners need not be present when the survey is made. 
(Marble v. Whitney, 28 N. Y. 297.) 

A writing signed by two commissioners of highways and a surveyor, 
which, although not a formal order, purports to be a survey of the road, 
is substantial compliance with the statute. ( Tucker v. Rankin, 15 Barb. 
471.) 

Failure of a town clerk to post a copy of an order altering a highway, 
delivered to him by the highway commissioner, does not render the order 
absolutely void. (. Engleman v. Longhorst, 120 N. Y. 332.) 

The order may not be attacked collaterally after a lapse of fifty years. 
(Dominick v. Hill, 6 St. Rep. 329.) 

The survey must be incorporated into the order. {Pratt v. People , 13 
Hun, 664.) 

When the survey is sufficiently incorporated in the order. {McCarthy 
v. Whalen, 19 Hun, 505.) 

Survey need not specify the width. {People v. Commissioners , 1 Cow. 23. 

Commissioners not strictly limited to the route specified in the applica¬ 
tion, but must follow the general course of the road. {Hallock v. Woolsey, 
23 Wend. 328; People v. Carman, 69 Hun, 118.) 

Where a village, incorporated under the general act (L. 1870, ch. 291), 
in laying out a street, did not follow the route laid down in the petition, 
the proceedings were held void. {People v. Whitney's Point, 102 N. Y. 
83.) 

A village resolution widening a street should contain a description of 
the lands to be taken. {Allen v. Northville, 39 Hun, 240.) 

Section 2 of chapter 114 of the laws of 1880, authorizing the commis¬ 
sioner of highways, on the petition of six freeholders, to lay out a road, 
and make and file an order containing a correct survey, declared unconsti¬ 
tutional. {People v. Mosier , 56 Hun, 64.) 

A new road may be laid out partly over an old one; and in describing 
the new, a reference to the old one is sufficient. {People v. Commissioners, 
37 N. Y. 360.) 

See People v. Commissioners, 13 Wend 310; Clements v. West Troy, 10 
How. Pr. 199; Bruyn v. Graham, 1 Wend. 370; Woolsey v. Tompkins, 23 
Wend. 324; Johnson v. Loveless , 18 W. D. 49; People v. Nash, 38 St. Rep. 
730; Engleman v. Longhorst , 120 N. Y. 332; Matter of South Seventh Street, 




The Highway Law of New York. 


73 


Application. 


48 Barb, 12; Sherman v. Kane, 86 N. Y. 57; Wildreck v. Hagar, 19 N. Y. 
656; Kelsey v. Burgess, 35 St. Rep. 368; Mayer v. New York, 100 N. Y. 284; 
People v. Mills, 109 N. Y. 69; Kelly v. Horton, 2 Cow. 424. 

§ 82. Application .—Any person or corporation assess¬ 
able for highway labor, may make written application to 
the commisioners of highways of the town in which he or 
it shall reside, or is assessable, to alter or discontinue a 
highway, or to lay out a new highway. 

Revised from 1 R. S.. cln. 16, tit. 1, art. 1, § 2; from 1 R. S., eh. 16, tit. 1, 
art. 4, § 54; from L. 1836, ch. 122. 

Commissioners may lay out a highway without any application therefor. 
(People v. Supervisors, 20 N. Y. 252; McCarthy |v. Whalen, 19 Hun, 505; 
Goidd v. Glass, 19 Barb. 189; Marble v. Whitney, 28 N. Y. 297.) 

To give commissioners of highways jurisdiction of proceedings to lay 
out a highway an application must be made to them in writing by a person 
liable to be assessed for highway labor. ( Harrington v. People, 6 Barb. 
607.) 

Commissioners of highways, as such, may not make application to lay 
out a highway. ( People v. Supervisors, 82 Hun, 298.) 

Any person assessable for highway labor may make the application. 
(People v. Eggleston, 13 How. Pr. 123.) 

A person liable to be assessed for highway labor in one town may 
initiate proceedings to lay out a highway located partly in his own town 
and partly in another town. (People v. Keck, 90 Hun, 499.) 

Residents of a village within a town are not proper applicants for the 
laying out of a road in the town outside of the village. (Commissioners 
v. Meserole, 10 Wend. 123.) 

Application to be filed with town clerk. (People v. Vail, 2 Cow. 623.) 

As to the sufficiency of the application, under the charter of the city 
of Troy. (Havermans v. Troy, 50 How. Pr. 510.) 

§ 83. Application for commissioners .—Whenever 
the land is not dedicated to the town for highway pur¬ 
poses and not released as herein provided, the applicant 
shall, within thirty days after presenting the application to 
the commissioners of highways, and after at least five 




74 


The Highway Law of New York. 


Application for commissioners. 


clays’ notice to said commissioners of the time and place 
of the application to the county court, in this section 
provided for, by verified petition showing the applicant’s 
right to so present the same, and that such application 
has been in good faith presented, and if the county judge 
require, on such notice to such parties interested as he 
shall direct, apply to the county court of the county 
where such highway shall be, for the appointment of three 
commissioners to determine upon the necessity of such 
highway proposed to be laid out or altered, or to the use¬ 
lessness of the highway proposed to be discontinued and 
to assess the damages by reason of the laying out, open¬ 
ing, altering or discontinuing of such highway. Such 
application to the county court shall be accompanied by 
the written undertaking of the applicant executed by one 
or more sureties, approved by the county judge, to the 
effect that if the commissioners appointed determine that 
the proposed highway or alteration is not necessary or that 
the highway proposed to be discontinued is not useless, 
the sureties will pay to the commissioners their compen¬ 
sation at the rate of four dollars for each |day necessarily 
spent and all costs and expenses necessarily incurred in 
the performance of their duties, which amount shall not 
exceed the sum of fifty dollars. 

Revised from 1 R. S., ch. 16, tit. 1, art. 4, §§ 60, 65, 81, as variously 
amended. Amended by L. 1894, ch. 334, and by L. 1897, ch. 844, § 1. 

Notice of application to the county court for the appointment of com¬ 
missioners need not be given to the highway commissioners. ( People v. 
Keck, 90 Hun, 497.) 

Compensation of commissioners under L. 1862, ch. 483. ( People v. 

Green , 52 How. Pr. 440; Matter of Spuyten Duyvil Parkway, 27 Hun, 305; 
14 W. D. 487.) 

Requirements of notice of application in Albany. ( Matter of Orange 
Street, 50 How. Pr. 244.) In New York city. ( Matter of Albany Street, 
6 Abb. Pr. 273.) 

See People v. Mosier, 56 Hun, 64. 





The Highway Law of New York. 


75 


Appointment of commissioners and their duties. 


§ 84. Appointment of commissioners and their 
duties .—Upon the presentation of such petiton, the county 
court shall appoint three disinterested freeholders, who 
shall not be named by any person interested in the pro¬ 
ceedings, who shall be residents of the county, but not of 
the town wherein the highway is located, as commissioners 
to determine the questions mentioned in the last section. 
They shall take the constitutional oath of office, and ap¬ 
point a time and place at which they shall all meet to hear 
the commissioners of highways of the town where such 
highway is situated, and others interested therein. They 
shall personally examine the highway described in the 
application, hear any reasons that may be offered for or 
against the laying out, altering or discontinuing of the 
highway, and assess all damages by reason thereof. They 
may adjourn the proceedings before them from time to 
time, issue subpoenas and administer oaths in such pro¬ 
ceedings, and they shall keep minutes of their proceed¬ 
ings, and shall reduce to writing all oral evidence given 
before them upon the subject of the assessment of damages. 
They shall make duplicate certificates of their decision, 
and shall file one in the town clerk’s office of the town, 
and the other, with such minutes aud evidence, in the 
county clerk’s office of the county in which the highway 
or proposed highway is located. 

Revised from 1 R. S., ch. 16, tit. 1, art. 4, § 60, as amended by L. 1881, 
eh. 696, § 1. 

See notes under §§ 86, 87 and 93, post, as to assessment of damages. 

If the owner of land taken for a highway has a right to damages, it is the 
duty of highway commissioners to apply to the county court for the ap' 
pointment of commissioners to assess such damages. ( Chapman v. Gates, 
46 Barb. 317.) 

The court will not appoint the commissioners without affidavits as to 
their qualifications. (. Matter of Houston Street , 7 Hill, 175.) 

As'to who are “disinterested freeholders.” (. Matter of Twenty-sixth 
Street, 12 Wend. 203; People v. Cline, 23 Barb. 197; Matter of Southern 




76 


The Highway Law of New York. 


Appointment of commissioners and their duties. 


Boulevard, 3 Abb. Pr. (N. S.) 447; Matter of South Seventh Street, 48 Barb. 
12; People v. Syracuse, 63 N. Y. 291; Matter of Eleventh Avenue, 49 How. 
Pr. 208; People v. Scott, 8 Hun, 566; Matter of Middletown, 21 Civ. Pro. 
201 .) 

The provision of the Code of Civil Procedure, § 46, as to a judge sitting 
in a case when related to one of the parties, does not apply to commis¬ 
sioners under this section. ( Matter of Ogden Street, 63 Hun, 188.) 

It is too late, on a motion to confirm the report, to object that one of 
the commissioners was personally interested. ( Matter of Southern Boule¬ 
vard, 3 Abb. Pr. (N. S.) 447.) 

The commissioners are not obliged to hold their meetings in any par¬ 
ticular place in the town where the highway is situated. (Matter of Coe, 
19 Misc. 549.) 

Commissioners may administer oaths to witnesses. (Matter of John 
Street, 19 Wend. 659.) 

The statute does not contemplate that commissioners appointed in pro¬ 
ceedings to lay out a highway shall be governed by technical rules of 
evidence applied in courts of record. (Matter of Pugh, 22 Misc. 43.) 

Opponents of the discontinuance of a highway owning property affected 
thereby have a right to be heard before the commissioners; the latter have 
no authority to oblige such owners to pay a sum of money for such privi¬ 
lege. (Matter of Coe, 19 Misc. 549.) 

Validity of proceedings not affected by what facts. (People v. Davis, 38 
Hun. 43; People v.' Potter, 36 Hun, 181; Buckley v. Drake, 41 Hun, 385; 
People v. Dolge, 45 Hun, 310.) 

The proceedings, under a special act, must strictly comply with the 
provisions thereof. (Ex parte Commissioners , 51 Barb. 277; Schreiber's 
Appeal, 53 How. Pr. 359.) 

The Commissioners must all be present at the meetings; but a majority 
may decide. (Babcock v. Lamb, 1 Cow. 238.) 

When an authority is conferred upon three, two may act. (Woolsey v. 
Tompkins , 23 Wend. 326.) 

Where one of the commissioners dies and there is no provision for filling 
the vacancy, the survivors may continue the proceedings. (People v. 
Syracuse, 63 N. Y. 291.) 

Majority of the commissioners have power to adjourn. (Matter of Neiv- 
land Avenue, 38 St. Rep. 796.) 

The commissioners appointed by the county court are not bound to 




The Highway Law of New York. 


77 


Notice of meeting. 


follow the route of the petition for the road with precision, and an exten¬ 
sion of one of the corners further than the petition is not erroneous if 
thereby a better road is obtained. (People v. Carman, 69 Hun, 118.) 

A decision of the commissioners that a road should be altered “as in 
said notice applied for,” held sufficient. ( Carris v Commissioners , 2 Hill, 
443. 

Power of commissioners is exhausted when they have delivered the 
assessment to the highway commissioners. (People v. Mott, 60 N. Y. 649.) 

See King v. Brooklyn , 42 Barb. 627; Van Valkenburgh v. New York, 43 
Barb. 109; Matter of Buffalo, 39 State Rep. 417. 

§ 85. Notice of meeting .—The applicant shall cause, 
at least eight days previous, written or printed notice to 
be posted up in not less than three public places in the 
town specifying, as near as may be, the highway proposed 
to be laid out, altered or discontinued, the tracts or par¬ 
cels of land through which it runs, and the time and place 
of the meeting of the commissioners appointed by the 
county court to examine the highway as mentioned in the 
last section. Such notice shall also, in like time, be per¬ 
sonally served on the owner and occupant of the land, if 
they reside in the town, or by leaving the same at their 
residence with a person of mature age; if they do not 
reside in the same town, or service cannot be made, copy * 
of such notice shall be mailed to such owner and occupant, 
if their post-office address is known to the applicant or 
ascertainable by him upon reasonable inquiry. 

Revised from 1 R. S., ch. 16, tit. 1, art. 4, §§ 59, 62, and from L. 1873, ch. 
69, § 1, as amended by L. 1878, ch. 114. 

In any proceeding to condemn the private property of a citizen for a 
public use, all notices and hearings that may tend to give the party to be 
affected any semblance of benefit, must be carefully observed. (People v. 
Kniskern, 54 N. Y. 61.) 

Commissioners acquire no jurisdiction to make an order laying out a 
highway, until notice in writing has been given to the occupants of the 
land. (People v. Smith, 7 Hun, 17; People v. Supervisors, 36 How. Pr, 

544 .) 


/ 




78 


The Highway Law of New York. 

/'Jr- 

Decision of commissioners in favor of application. 


No title is acquired to lands not embraced in the notice. ( Matter of 
Newland Avenue , 38 St. Rep. 796.) 

Occupant of land through which a road is contemplated must have 
notice, and his attendance as a witness will not be deemed a waiver of 
notice. (People v. Osborn , 20 Wend. 187.) 

Notice given to the occupant of land not vitiated because it erroneously 
Stated that some of the improved lands were unimproved. (Snyder v. 
Trumpbour, 38 N. Y. 360.) 

To send the notices by mail is not a compliance with the statute. 
(People v. Stedman, 57 Hun, 280.) 

In an action by commissioners of highways to recover penalties for 
obstructing a highway, it is unnecessary for the plaintiffs to show that all 
the preliminary steps to the laying out of the road were taken. (Chap¬ 
man v. Gates , 46 Barb. 317.) 

Ch. 114, L. 1880, is unconstitutional, it not providing for notice to land 
owners. (People v. Hosier, 56 Hun, 64.) 

Notice must be given of the hearing before a jury in re-assessing 
damages under ch. 455, L. 1847. (People v. Gray, 49 Hun, 465; People v. 
Tollman , 36 Barb. 222.) 

See Case v. Thompson , 6 Wend. 634; Hatter of Art Street , 20 Wend. 685; 
Bouton v. Brooklyn , 2 Wend. 395; Hatter of William Street, 19 Wend. 678; 
People v. Whitney's Point , 32 Hun. 508; s. c. 102 N. Y. 81. 

§ 86. Decision of commissioners in favor of ap¬ 
plication .—If a majority of the commissioners appointed 
by the county court shall determine that the highway 
or alteration applied for is necessary, or that the highway 
proposed to be discontinued is useless, they shall assess 
all damages which may be required to be assessed by rea¬ 
son thereof and make duplicate certificates to that effect. 

Revised from 1 R. S., ch. 16, tit. 1, art. 4, § 63, and from L. 1880, ch. 
114, § 2. 

See notes under \ 80, ante, as to “Compensation to Land Owners.” 

See Constitution, Art. 1, § 7, post, as to method of ascertaining damages. 

See notes under § 87, post, as to “Assessment of Benefits.” 

The question of damages is solely one for the commissioners, and their 
decision can not be disturbed on appeal. (See notes under § 89, post.) 




The Highway Law of New York. 


79 


Decision of commissioners in favor of application. 


Evidence must show and commissioners must find that a highway to be 
abandoned is useless; it is not enough to find it unnecessary , or that a new 
road would be better. ( Matter of Coe, 19 Misc. 549.) 

Formerly the land owner could elect the mode of assessing damages. 
{Johnston v. Supervisors, 19 Johns. 272.) 

Objection to manner of assessment of damages cannot be raised in a 
collateral suit. {Cooper v. Bean, 5 Lans. 318.) 

A written agreement between the land owners and commissioners is a 
good assessment. {People v. Supervisors, 20 N. Y. 252.) 

A corporation taking land for street purposes is directly liable to the 
owner, in spite of an assessment empowering such owner to look to adjoin¬ 
ing lot-holders. {Sage v. Brooklyn , 89 N. Y. 189; Genet v. Brooklyn , 94 N. 
Y. 645; 114 N. Y. 618.) 

Where the commissioners decide to depart from the proposed width, 
they should notify the land owners and hear them upon the question of 
damages. {Matter of Feeney, 20 Misc. 272.) 

Measure of damages is present market value of the property. {Matter of 
William Street, 19 Wend. 678.) 

The assessment may estimate the value of the land at a certain sum per 
foot. {Coles v. Williamsburgh, 10 Wend. 659.) 

A widow entitled to dower in the land is entitled to the value of her 
life-estate. {Matter of William Street, 19 Wend. 678.) 

Damages for destruction of building erected over the line of a street. 
{Matter of Furman Street, 17 Wend. 649.) 

Damages where owner previously offered to dedicate the land. {Matter 
of the Terrace, 39 St. Rep. 270.) 

In taking evidence as to damages, affidavits of disinterested parties may 
be received, but are not conclusive upon the commissioners; the owners 
may not be examined. {Matter of John Street, 19 Wend. 659; Matter of 
William Street, 19 Wend. 678; Matter of Twenty-ninth Street, 1 Hill, 189.) 

Before rendering their report as to damages, the commissioners may be 
required to examine additional affidavits. {Ex parte Department of Public 
Works, 13 Hun, 483.) 

Parties who knew of the assessment proceedings and neglected to lay 
their proof before the commissioners, are concluded. {Matter of John 
Street, 19 Wend. 659.) 

In the report of damages, it is sufficient if the property owners be 




80 


The Highway Law of New York. 


Decision of commissioners in favor of application. 


described without being specially named. (Granger v. Syracuse , 38 How. 
Pr. 308.) 

When the claims of title are conflicting, the damages should be awarded 
to “owners unknown.” (Matter of Eleventh Avenue, 49 How. Pr. 208; see, 
also, in this connection, Ex parte De Wint, 1 Cow. 595; 2 Cow. 498; Re 
BogarPs Estate, 1 Wend. 41; Ex parte Department of Parks, 73 N. Y. 560; 
Fisher v.New York, 57 N. Y. 344; Matter of Eleventh Avenue, 81 N. Y. 436; 
Matter of William Street , 19 Wend. 678; Pollock v. Morris, 105 N. Y. 676.) 

Where an award of damages was made to the husband of the owner? 
the proceedings were not thereby invalidated. (Mitchells. White Plains.) 

Separate sums as damages should be awarded to lessor and lessee; but 
if only one sum is awarded the former, the latter may recover from him 
his proportionate share. (Coutant v. Catlin, 2 Sand. Ch. 485.) 

Where separate sums are awarded each, the decision is conclusive as 
between lessor and lessee. (Turner v. Williams, 10 Wend. 139; Coutant 
v. Catlin, 2 Sand. Ch. 485.) 

Value of leasehold interest; how estimated. (Ex parte Commissioners, 
54 How. Pr. 313.) 

A lessee’s right of renewal should be considered in fixing his damages. 
(Matter of William Street, 19 Wend. 678.) 

Rights of grantors and grantees to damages. (Livingston v. New York, 
8 Wend. 85: Matter of Furman Street, 17 Wend. 649; Baldwin v. Buffalo, 
35 N. Y. 375; Matter of Pierce, 24 Abb. N. C. 134; Matter of Munson, 9 
St. Rep. 126; New York v. Curran , 24 Abb. N. C. 128.) 

When the assessment of the commissioners is completed and delivered 
to the commissioners of highways, their power is exhausted. (People v. 
Mott, 60 N. Y. 649.) 

See Matter of City of Rochester, 24 App. Div. 383; Dexter v. Alfred, 74 
Hun, 259; People v. Whitney, 17 W. D. 456; People v. Supervisors, 3 Barb. 
332; People v. Supervisors, 12 Barb. 446; People v. Supervisors, 19 Wend. 
102; Matter of IS 1st St., 35 St. Rep. 548; Reinhardt v. Buffalo, 39 St. Rep. 
304; Matter of Department of Public Parks, 36 St. Rep. 516; Matter of 
127th St., 56 How. Pr. 60; Riker v. Neiv York, 3 Daly, 174. 

Assessment of Damages by Jury. 

The provisions of the various former statutes, relative to the assessmen 
and re-assessment of damages by a jury, have all been either repealed or 
rendered obsolete by the highway law. 






The Highway Law of New Yore. 


81 


Damages in certain cases, how estimated. 


Decisions applicable to former statutes. ( People v. White, 59 Barb. 666; 
Peoples. Eldridge, 3 Hun, 541; Clark v. Miller, 42 Barb. 255; Patchin v. 
Brooklyn, 2 Wend. 377; s. c., 8 Wend. 47; People v. Lewis, 26 How. Pr. 
378; People v. Supervisors, 34 N. Y. 268; People v. See, 29 Hun, 216; Canal 
Bank v. Albany, 9 Wend. 244; Matter of William Street , 19 Wend. 678; 
Commissioners v. Judges, 7 Wend. 264; Owners v. Albany, 15 Wend. 374; 
Buckley v. Drake, 41 Hun, 384; People v. Dains, 38 Hun, 43; Clark v. 
Stillman , 18 W. D. 232; People v. Potter , 36 Hun, 181; People v. Schell- 
enger , 32 St. Rep. 353; People v. WeZd, 6 St. Rep. 173; People v. Dolge, 45 
Hun, 310; Tiffany v. Gifford , 24 St. Rep. 906; Matter of Main Street, 98 
N. Y. 454; People v. Robinson, 8 St. Rep. 840; People v. Brown , 47 Hun, 
459.) 


§ 87. Damages in certain cases, liow estimated .— 
The owner of lands within the bounds of a highway dis¬ 
continued may inclose the same and have the exclusive 
use thereof, and the benefits resulting therefrom may be 
deducted in the asssessment of damage caused by the 
laying out of a highway through his other lands in place 
of the discontinued highway. 

Revised from 1 R. S., eh. 16, tit. 1, art. 4, § 64, as amended by L. 1847, 
cli. 455, § 22; from 1 R. S., ch. 16, tit. 1, art. 4, §71; and from L. 1880, eh. 
114, §3. 

Right of owner to fence in old road when new one is laid out on his 
lands. (Engleman v. Longhorst , 120 N. Y. 332.) 

When acquiescence in the use of a highway by the people, deemed a 
waiver by the owner of right to damages. ( Chapman v. Gates , 46 Barb. 

313.) 

Constitutionality of chap. 455 of Laws of 1847. ( Clark v. Miller, 42 
Barb. 263.) 

See Matter of Pearl Street, 19 Wend. 651; Matter of William Street, 19 
Wend. 678. 


Assessment of Benefits. 

The references under this heading have application to the opening and 
improvement of streets in cities and villages where a portion at least of 
6 




82 


The Highway Law of New York. 


Assessment of benefits. 


the cost of such improvement is assessed directly upon the property 
benefited. 

Assessment should be on basis of benefit over loss and damage. ( Matter 
of Fourth Avenue , B Wend. 452; Canal Bank v. Albany, 9 Wend. 244; 
Matter of Albany Street, 11 Wend. 149; Matter of Degraw Street, 18 Wend. 
568; Matter of William Street, 19 Wend. 678; Matter of Riverside Park, 63 
Barb. 282.) 

The amount of benefit should be determined by ascertaining the market 
value of the property with the improvement and without it. ( Elwood v. 

Rochester, 43 Hun. 102; s. c., 122 N. Y. 229.) 

Cemetery lands should be exempted. ( Matter of Eleventh Avenue, 49 

How. Pr. 208.) 

Railroad lands should not be exempted without explanation thereof. 

{Matter of Cedar Park, 1 How. Pr. (N. S.) 257.) 

The bed of a railroad is not benefited by a street being opened across it. 

{Railroad Co. v. Morrisania, 7 Hun, 652; Railroad Co. v. Kane, 9 Hun, 
506; s. c., 72 N. Y. 614.) 

Relief by court from improper assessment. ( Murray v. Graham, 22 
Wend. 559 ; Merrill v. Brooklyn, 3 Edw. Ch. 421; Elwood v. Rochester, 43 
Hun, 102; s. c., 122 N. Y. 229.) 

Where land is taken for a street, the increased value of the owner’s ad¬ 
joining property may be set off against the damage sustained. ( Betts v. 
Williamsburgh, 15 Barb. 255; Livingston v. New York, 8 Wend. 85; Wyman 
v. New York, 11 Wend. 486.) 

The power to levy assessments for local improvements exists only where 
it is distinctly conferred by legislative authority. ( Stebbins v. Kay, 123 N. 
Y. 31.) 

Report of commissioners of estimate; objections thereto; confirmation 
of. ( Matter of John Street . 19 Wend. 659; Matter of William Street, 19 
Wend. 678; Matter of Spuyten Duyvil Parkway, 67 How. Pr. 341; Matter 
of Fourth Avenue, 11 Abb. Pr. 189; Brodhurst v. Turnpike Co., 16 Johns. 
8; Matter of Munson, 9 St. Rep. 126; Matter of Livingston Street, 18 Wend. 
556; Matter of Church Street, 49 Barb. 455.) 

Long Island City. ( Matter of Woolsey, 95 N. Y. 135; Matter of Flushing 
Avenue, 101 N. Y. 678.) 

Albany. {Ex parte Albany, 23 Wend. 277; Canal Bank v. Albany, 9 
Wend. 244.) 

New York. (< Gilbert v. Havemeyer, 2 Sand. 506; Matter of Commissioners 
of Public Parks, 47 Hun, 302; Matter of New York, 27 St. Rep. 188; Astor 






The Highway Law of New York. 


83 


Motion to confirm, vacate or modify. 


v. New York, 62 N. Y. 580; Matter of Eleventh Avenue, 49 How. Pr. 208; 
Matter of 138tli Street, 60 How. Pr. 290.) 

Syracuse. (.People v. Syracuse, 63 N. Y. 291.) 

Brooklyn. (.People v. Brooklyn, 17 W. D. 543; Genet v. Brooklyn, 99 N. 
Y. 296; s. c., 114 N. Y. 618.) 

Rochester. (Elwood v. Rochester, 43 Hun, 102; 122 N. Y. 229.) 

Amsterdam. (.Matter of Amsterdam, 126 N. Y. 158.) 

See Stebbins v. Kay, 123 N. Y. 31; Lowerre v. New York, 46 Hun, 253; 
Tingue v. Port Chester, 101 N. Y. 294.) 

§ 88. Decision of commissioners deny ing applica¬ 
tion .—If a majority of the commissioners appointed by 
county court shall determine that the proposed highway or 
alteration is not necessary, or that the highway proposed 
to be discontinued is not useless, they shall make dupli¬ 
cate certificates to that effect. The costs and expenses 
necessarily incurred by such commissioners in the pro¬ 
ceedings shall be indorsed upon such duplicate certificates, 
and upon a confirmation of such decision and of the 
amount of such costs and expenses by the county court, 
such costs and expenses not exceeding fifty dollars shall 
be payable by the applicants. 

Revised from 1 R. S., eh. 16, tit. 1, aid. 4, § 82. Amended by L. 1894, ch. 
334. 


§ 89. Motion to confirm, vacate or modify .— 
Within thirty days after the decision of the commissioners 
shall have been filed in the town clerk’s office any party 
interested in the proceeding may apply to the court if in 
session or to the county judge appointing the commis¬ 
sioners for an order confirming, vacating or modifying 
their decision, and such court or judge may confirm, 
vacate or modify such decision. If the decision be vacated 
the court or judge may order another hearing of the mat¬ 
ter before the same or other commissioners. If no such 









84 


The Highway Law of New York. 


Motion to confirm, vacate or modify. 


motion is made, the decision of the commissioners shall 
be deemed final. Such motion shall be brought on, upon 
the service of papers upon adverse parties in the proceed¬ 
ing, according to the usual practice of the court in actions 
and special proceedings pending therein; and the decision 
of the county court or judge shall be final, excepting that 
a new hearing may be ordered as herein provided. If the 
final decision shall be adverse to the applicant, no other 
application for laying out, altering or discontinuing the 
same highway shall be made within two years. 

Revised from 1 R. S., ch. 16, tit. 1, art. 4, §§ 84-90, as amended by L. 1845, 
eh. 180, and L. 1847, ch. 455. Amended by L. 1895, ch. 716. 

See §§ 92, 152, post , as to costs on such motion. 

Declaratory of the statute. ( People v. VanAlstyne, 32 Barb. 131.) 

The right to appeal does not exist in the case of a local highway act 
unless especially conferred thereby. ( People v. Lawson , 17 Johns. 277.) 

Each owner of improved lands is entitled to a separate appeal. ( Clark 
v. Phelps, 4 Cow. 190.) 

The limit of time provided by this section within which an appeal may 
be taken to the county court, relates to the time of instituting the motion 
by service of notice thereof and not to the hearing thereof. {Matter of 
Glenside Woolen Mills , 92 Hun, 188.) 

Formerly held that a decision refusing to lay out, etc., could be reviewed 
within four years. {People v. Jones, 63 N. Y. 306.) 

Notice of appeal. {King v. Reed, 9 Supp. 616.) 

Notice of appeal must be served on each commissioner and each land- 
owner. ( Commissioners v. Claw , 15 Johns. 537; People v. Osborn, 20 Wend. 
186; People v. Lawrence, 54 Barb. 589; Metcalf v. Garlinghouse, 40 How. 
Pr. 50.) 

An appeal suspends the powers of the commissioners, and if they act 
before their acts are affirmed by a decision they are trespassers. {Clark 
v. Phelps, 4 Cow. 190; People v. Temple, 27 Hun, 128.) 

An appeal from an order discontinuing a public highway does "not 
justify the removal of an obstruction thereon before the determination of 
the appeal. {Drake v. Rogers, 3 Hill, 604.) 






The Highway Law of New York. 


85 


Motion to confirm, vacate or modify. 


When petitioner should be made a party defendant in proceedings to 
review. (People v. County Court, 92 Hun, 13.) 

Wlio may be heard on appeal. (Matter of Coe, 19 Misc. 549; Matter of 
Oakley Avenue, 85 Hun, 446.) 

Objection to the sufficiency of the petition to lay out a highway should 
be raised by motion to set aside the order appointing the commissioners 
and not upon a motion to confirm, vacate or modify. {Matter of Pugh, 
22 Misc. 43.) 

What facts and evidence should be considered upon the appeal. {People 
v. Goodwin, 5 N. Y. 568; People v. Judges, 23 Wend. 360; Matter of John 
Street, 19 Wend. 659; Matter of William Street, 19 Wend. 678; Matter of 
Pacific Street, 1 Den. 623; Matter of Emmons Ave., 17 St. Rep. 722.) 

Upon an appeal from an order discontinuing a highway, the burden is 
upon the respondent to show that the highway is useless and unnecessary. 
{People v. Nichols, 51 N. Y. 470.) 

The court has no power or authority to interfere with the findings or 
decision of the commissioners upon the question of damages. (Const., 
art. 1, § 7; Matter of Feeney, 20 Misc. 272; People v. Thayer, 88 Hun, 136; 
Matter of Carpenter, 11 Misc. 690; Matter of Pugh, 22 Misc. 43.) 

It was formerly held, however, that the court could entertain and 
decide motions to confirm an assessment of damages, and could review 
the assessment by certiorari. See decisions applicable to certiorari pro¬ 
ceedings under this section; see, also, Le Roy v. New York, 20 Johns. 
430; Owners v. Albany, 15 Wend. 374; Matter of Furman Street, 17 Wend. 
649; Matter of Mt. Morris Square, 2 Hill, 14; Matter of Hand Street, 52 
Hun, 206; Matter of Henry Street, 7 Cow. 400; Matter of Pearl Street, 19 
Wend. 651; Matter of John Street, 19 Wend. 659; Ex parte Commissioners, 
51 Barb. 277; Ex parte Central Park, 16 Abb. Pr. 56; Matter of Southern 
Boulevard, 3 Abb. Pr. (N. S.) 447; Matter of Bushivick Avenue, 48 Barb. 
9; Matter of South Seventh Street, 48 Barb. 12; Matter of Union Avenue, 
59 How. Pr. 228; Matter of 138th Street, 60 How. Pr. 290; Matter of Har¬ 
man Street, 16 Johns. 231; Matter of Dover Street, 1 Cow. 74; Matter of 
Albany Street, 11 Wend. 149; Matter of Eleventh Avenue, 49 How. Pr. 
208; Matter of Third Street, 6 Cow. 571; Matter of Eleventh Avenue, 81 
N. Y. 436; Buell v. Lockivood, 8 N. Y. 55. 

Uncertainty in the description of the highway to be laid out is good 
ground for setting aside the proceedings. {People v. Diver, 19 Hun, 263.) 






86 


The Highway Law of New Tork. 

Motion to confirm, vacate or modify. 


The court is not authorized under this section to designate the width of 
a proposed highway. ( Matter of Feeney, 20 Misc. 272.) 

An order, on appeal, that the road be laid out as applied for, is a suffici- 
cent direction to the commissioners to lay it out. (. People v. Commissioners , 

1 Cow. 23.) 

Costs on appeal. ( Cary v. Marston, 56 Barb. 27; Disosway v. Winant. 1 
Abb. Dec. 508.) 

An order of the county court under this section is final; it cannot be 
reviewed by certiorari or appeal. {People v. County Court , 4 App. Div. 
542; Matter of Taylor & Allan , 8 App. Div. 395.) 

An appeal lies from the decision of the county court; it may not be 
reviewed by certiorari. {People ex rel. R. R. Co. v. County Court , 152 N. 
Y. 214; Matter of De Camp , 151 N. Y. 557; People v. Nash, 38 St. Rep. 
730; Matter of Kingsbridge Road, 4 Hun, 599; s. c., 62 N. Y. 645.) 

As to appeals from the proceedings of a municipal corporation in laying 
out and widening its streets. {Matter of Kingsbridge Road, 4 Hun, 599 
s. c., 62 N. Y. 645; Brooklyn v. Meserole, 26 Wend. 132; Merrill v. Brooklyn, 

3 Edw. Ch. 421; Guest v. Brooklyn, 69 N. Y. 506; Kennedy v. Troy, 77 N. 
Y. 493.) 

The regularity of the proceedings of the commissioners cannot be 
reviewed by the supervisors. {People v. Supervisors, 7 Wend. 531; People 
v. Supervisors of Kings County, 16 Wend. 520.) 

Certiorari will not lie under the present statute to review the decision 
of the commissioners; the above section being broad enough to confer all 
powers of review upon the county court by appeal. {People v. Thayer, 88 
Hun, 136.) 

Decisions applicable to certiorari proceedings under former statutes. 
{People v. Melville, 7 Misc. 214; People v. Stedman, 57 Hun, 280; Patchin 
v. Brooklyn, 13 Wend. 664; Matter of Washington Park, 1 Sand. 283; 
Patchin v. Brooklyn, 2 Wend. 377; s. c., 8 Wend. 47; Bogartv. Neiv York, 
7 Cow. 158; Matter of Carlton Street, 20 Wend. 685; Ex parte Sanders , 

4 Cow. 544; People v. Whitney, 17 W. D. 456; People v. Heddon, 32 Hun, 
299: People v. Dolge, 45 Hun, 310; People v. Hildreth, 126 N. Y, 360; 
People v. Moore, 39 St. Rep. 881; People v. Supervisors, 7 Wend. 531; 
People v. Supervisors, 16 Wend. 520; People v. County Court, 92 Hun, 
13; Beardslee v. Dolge, 143 N. Y. 160.) 

Under the former statutes from which this section was revised, appeals 
were heard by three judges of the Common Pleas or by three referees ap- 








The Highway Law of New York. 


87 


Limitations upon laying out highways. 


pointed by the county judge. (People v. Broivn, 47 Hun, 59; People v. 
Commissioners, 57 N. Y. 549; People v. Commissioners, 8 N. Y. 476; People 
v. Kniskern, 54 N. Y. 52; People v. Connor, 46 Barb. 333; Terpenning v. 
Smith, 46 Barb. 208; People v. Robertson, 17 How. Pr. 74; Peoples. Crosier, 
26 How. Pr. 195; People v. Barber, 12 Barb. 193; People v. Plainfield, 7 
How. Pr. 27; People v. Watertown, 7 How. Pr. 28; People v. Baker, 19 
Barb. 240; People v. Ferris’, 41 Barb. 121; People v. Van Alstyne, 32 Barb. 
131; People v. Burton, 65 N. Y. 452; People v. Sherman, 15 Hun, 575; 
People v. Haiwis, 63 N. Y. 391; People v. Strevell, 27 Hun, 218; Rector v. 
Clark, 78 N. Y. 21; People v. Heddon, 32 Hun, 299; People v. Talmage , 
46 Hun, 603; People v. Carman, 47 Hun, 380; Harris v. Whitney, 6 How. 
Pr. 175; Commissioners v. Judges, 7 Wend. 264; Commissioners v. Judges, 
25 Wend. 453; People v. Champion, 16 Johns. 61; Commissioners v. Judges, 
13 Wend. 432; Ex parte Commissioners, 1 Cow. 142; Snyder v. Trumpdour , 
38 N. Y. 355; Canal Bank v. Albany, 9 Wend. 244; Matter of Beekman 
Street, 20 Johns. 269; Striker v. 7ie%, 7 Hill, 9; People v. Cortelyou, 36 
Barb. 164; People v. Sweet, 18 W. D. 258.) 

See Matter of James, 43 Hun, 67; Commissioners of Carmel v. Judges 
of Putnam, 7 Wend. 264; People v. Strevell, 27 Hun, 218; Matter of 163rd 
Street, 40 St. Pep. 684; Matter of Lexington Avenue, 40 St. Rep. 723; 
People v. Haverstraw. 47 St. Rep. 891; Matter of Highway at Tappan, 83 
Hun, 613. 


§ 90. Limitations upon laying out highways .— 
No highway shall be laid out less than three rods in width, 
nor through an orchard of the growth of four years or 
more, or any garden cultivated as such for four years or 
more, or grape vineyard of one or more year’s growth, 
and used in good faith for vineyard purposes, or build¬ 
ings, or any fixtures or erections for the purposes of trade 
or manufactures, or any yard or inclosure necessary to the 
use and enjoyment thereof, without the consent of the 
owner or owners thereof, unless so ordered by the county 
court of the county in which the proposed highway is situ¬ 
ated; such order shall be made on the certificate of the 
commissioners of highways of the town or towns in which 




88 


The Highway Law of New York. 


Limitations upon laying out highways. 


the proposed highway is situated, showing that the public 
interest will be greatly promoted by the laying out and 
opening of such highway, and that commissioners ap¬ 
pointed by the court have certified that it is necessary; a 
copy of the certificate, with eight days’ notice of the time 
and place of the hearing before the county court, shall be 
served on the owners of the land, or if they are not resi¬ 
dents of the county, upon the occupants; the county court 
upon such certificates, and the proofs and other proceed¬ 
ings therein, may order the highway to be laid out and 
opened, if it deems it necessary and proper. The com¬ 
missioners of highways shall then present the order of the 
county court, with the certificate and proofs upon which 
it was granted, certified by such court to the general term 
of the supreme court in the judicial department in which 
the land is situated, upon the usual notice of motion, 
served upon the owner or occupant, or the attorney who 
appeared for them in the county court. If such general 
term of the supreme court shall confirm the order of the 
county court, the commissioners of highways shall then 
lay out and open such highway as in other cases. The 
provisions of this section shall not apply to vineyards 
planted, or to buildings, fixtures, erections, yards or in¬ 
closures, made or placed on such land after an applica¬ 
tion for the laying out and opening the highway shall 
have been made. In case the highway to be laid out shall 
constitute an extension or continuation of a public high¬ 
way already in use, and shall not, as to such new por¬ 
tion, exceed half a mile in length, the commissioners 
may lay out such extension or continuation, of a width of 
less than three rods, provided, however, that it be not 
less than the widest part of the highway of which it is an 
extension or continuation. In such case the commis¬ 
sioners shall specify in their certificate the precise width 
of the new portion of such highway, and shall certify that 





The Highway Law of New York. 


89 


Limitations upon laying out highways. 


such width is as great at least as the widest part of the 
highway of which it is a continuation or extension. 

Revised from L. 1869, eh. 24, § 1, and from 1 R. S., eh. 16, tit. 1, art. 4, 

§§ 57, 58, 80, as amended by L. 1878, eh. 778. Amended by L. 1895, eh. 508. 

See Insanity Law, § 38, as to opening roads through lands of state 
hospital. 

As to the power of commissioners to lay out a road through buildings, 
etc., under the original act. ( Clark v. Phelps , 4 Cow. 190; Harrington v. 
People, 6 Barb. 607.) 

A verbal consent by the owner to the laying out of a highway through 
his cultivated land, is sufficient, if acted upon before revocation. (People 
v. Albright, 14 Abb. Pr. 305; People v. Goodivin, 5 N. Y. 568; MeCartliy v. 
Whalen, 19 Hun, 503; s. c., 87 N. Y. 148; Marble v. Whitney, 28 N. Y. 
297; Benedict v. Calkins, 45 Hun, 549; see Fowler v. Mott, 19 Barb. 204.) 

A promise to pay the owner a certain sum for his consent to the laying 
out of a road through his lands may be enforced by action. ( Noyes v. 
Chapin, 6 Wend. 461.) 

An order laying out a highway through cultivated, improved or enclosed 
grounds should be signed by all the commissioners or show that all parti¬ 
cipated or were notified so to do. ( People v. Hynds , 30 N. Y. 470; People 
v. Commissioner's, 27 Barb. 94.) 

As to whether such a highway is “necessary and proper” depends upon 
the circumstances of the case. (People v. Ireland, 75 Hun, 600.) 

Whether or not the yard or inclosure comes within the statute depends 
upon the nature and situation thereof. (Lansing v. Caswell, 4 Paige, 523; 
People v. Cowles, 3 T. & C. 766.) 

Whether the land desired is a garden is a question of fact. (People v. 
Moore, 39 St. Rep. 881.) 

Garden, barn-yard and bee-yard within the statute. (People v. Temple, 
27 Hun, 128; Matter of James, 43 Hun, 67; People v. Commissioners, 57 
N. Y. 549; People v. Horton , 8 Hun, 357.) 

Door-yard within the statute. (Ex parte Clapper, 3 Hill, 458.) 
Unoccupied land next to a saw-mill held not to be such a “yard or 
inclosure” as to require the owner’s consent; also a mill-race is not 
within the statute. (People v. Kingman, 24 N. Y. 559.) 

As to what did not constitute an orchard. (People v. Schellenger, 32 St. 
Rep. 353.) 








90 


The Highway Law of New York. 


Limitations upon laying out highways. 


Whether consent to the opening of a road through cultivated land or 
buildings shall be granted must depend greatly upon the particular 
circumstances. ( Matter of Four-Corner Road, 37 St. Rep. 711; People v. 
Moore, 39 St. Rep. 881; People v. Commissioners, 42 Hun, 463.) 

The county court can not modify the decision of the commissioners so as 
to designate the width of the highway. ( Matter of Feeney, 20 Misc. 272.) 

An order directing the laying out of a new road is not void because part 
of it is upon the bed of an old road two rods wide. {Snyder v. Plass, 28 
N. Y. 465; Snyder v. Trumpbour, 38 N. Y. 355.) 

Motion to confirm order of county court laying out a highway denied on 
ground proof fails to show its necessity. {Matter of Town of Hampton, 21 
App. Div. 623.) 

As to who may oppose the confirmation of the order of the county court 
by the appellate division. {Matter of Oakley Avenue, 85 Hun, 446.) 

Where the order laying out the highway does not comply with the 
requirements of the statute in the matter of stating the width, courses, 
etc., the order will be reversed upon appeal. {People v. Diver, 19 Hun, 
263.) 

A certificate, approved by the county court and general term, is 
nevertheless not conclusive of the right to locate the road. {People v. 
Temple, 27 Hun, 128.) 

As to the power of the board of supervisors to authorize the laying out 
of a highway of a less width than is now required by statute. {People v. 
Dains, 38 Hun, 43; Phillips v. Schumacher, 10 Hun, 411.) 

As to the power of a board : of supervisors to appoint special commis¬ 
sioners to lay out a road through a building, under L. 1838, ch. 314, and 
L. 1848, ch. 164. {People ex rel. Sammis v. Supervisors, 12 Supp. 21; s c., 
58 Hun, 371.) 

See Matter of James, 43 Hun, 67; Elwood v. City of Rochester, 43 Hun, 
109; s. c., 122 N. Y. 229; Snyder v. Plass, 28 N. Y. 465; Snyder v. Trump¬ 
bour, 38 N. Y. 355; People v. Scott, 8 Hun, 566; Peoples. Strevell, 27 Hun, 
218; Matter of Oakley Avenue, 85 Hun, 446; Commissioners v. Judges, 7 
Wend. 264; Herrick v. Stover, 5 Wend. 580; Gould v. Glass, 19 Barb. 179; 
People v. Commissioners, 27 Barb. 94; Harrington v. People, 6 Barb. 607; 
Carris v. Commissioners, 2 Hill, 443; Patcliin v. Brooklyn , 2 Wend. 377. 




The Highway Law of New York. 


91 


Laying out highways through burying grounds. 


Highways Crossing Railroads. 

A public highway may be laid out across the track of a railroad com¬ 
pany, without compensation, though the company has purchased the 
fee. ( Railroad Co. v. Greenbush, 5 Lans. 461; Railroad Co. v. Kerr, 45 
Barb. 138; Ex parte Kerr, 42 Barb. 119; Railroad Law, post; Railroad Co. 
v. Silverstone, 46 St. Rep. 141.) 

This right extends to the whole roadbed. ( D. & H. C. Co. v. White¬ 
hall, 80 N. Y. 21.) 

But not to land condemned for depot purposes, or where tracks are laid 
for storing cars. (Railroad Co. v. Greenbusli, 52 N. Y. 510; Railroad Co. 
v. Williamson , 91 N. Y. 552; Railroad Co. v. Brunnell, 24 N. Y. 345; 
Matter of Alexander Avenue, 44 St. Rep. 546.) 

Such an act will be restrained by injunction. (Railroad Co. v. 
Brownell, 24 N. Y. 345; Railroad Co. v. Williamson, 18 W. D. 257.) 

The legislature, under the constitution, may require a railroad company 
to construct a bridge to carry a turnpike road over its track. (People v. 
Boston & Albany R. R. Co., 70 N. Y. 569.) 

See as to an incorporated village opening a street through a railroad 
“yard.” (Matter of Folts Street , 18 App. Div. 568.) 

A railroad company may appeal from an order laying out a street across 
its track. (People v. May, 27 Barb. 238.) 

See L. 1853, ch. 62, Appendix, 2 >ost, regulating the construction of 
roads over railroad tracks. 

See notes under § 100, post , as to “Uses of Highways.” 

§ 91. Laying out highways through burying 
grounds .—No private road or highway shall be laid out 
or constructed upon or through any burying ground, un- 
unless the remains therein contained are first carefully 
removed, and properly reinterred in some other burying 
ground, at the expense of the persons desiring such road 
or highway, and pursuant to an order of the county court 
of the county in which the same is situated, obtained upon 
notice to such persons as the court may direct. 

Revised from L. 1868, ch. 843, § 1. 

For a discussion as to the general policy of the legislature in regard to 
the taking of cemeteries and burying grounds for public purposes, see 
Matter of Board of Street Opening , 62 Hun, 499. 




92 


The Highway Law of New York. 


Costs, by whom paid. 


§ 92. Costs, by whom paid .—In all cases of assess¬ 
ments of damages by commissioners appointed by the 
court, the costs thereof shall be paid by the town except 
when reassessment of damages shall be had on the appli¬ 
cation of the party for whom the damages were assessed, 
and such damages shall not be increased on such reassess¬ 
ment, the costs shall be paid by the party applying for the 
reassessment; and when application shall be made by two 
or more persons for the reassessment of damages, all per¬ 
sons who may be liable for costs under this section shall 
be liable in proportion to the amount of damages respec¬ 
tively assessed to them by the first assessment, and may 
be recovered by action in favor of any person entitled to 
the same. Each commissioner appointed by the court, 
for each day necessarily employed as such, shall be entitled 
to four dollars and his necessary expenses. 

Revised from L. 1847, ch. 455, § 7. Amended by L. 1897, cli. 314, § 2. 

See § 152, post, as to costs on motions. 

“ Costs” as referred to in this section are costs which may be allowed to 
one of the parties under the provisions of section 152. {People ex rel . Bevins 
v. Supervisors, 82 Hun, 298.) 

The term “ costs” cannot be deemed to apply to a bill for legal services 
rendered by an attorney employed by the highway commissioner. A 
highway commissioner cannot bind the town except under a power 
expressly conferred by statute and so would be personally liable for such 
a bill. {People ex rel. Bevins v. Supervisors , 82 Hun, 298.) 

When the commissioners report in favor of a proposed highway and 
assess the damages but the proceeding fails because of the absence of the 
necessary consent of the owner or certificate of the highway commis¬ 
sioners, the costs of the proceeding and the fees of the commissioners 
should be borne by the applicant. {Matter of Miller, 9 App. Div. 260; see 
§ 83 of Highway Law, ante.) 

Fees of commissioners are not a charge upon the town where the 
proceeding to lay out a highway fails. {Matter of Miller, 9 App. Div. 206.) 

§ 93. Dam ayes assessed, and costs to be a udited .— 
All damages to be agreed upon, or which may be finally 







The Highway Law of New York. 


93 


Damages assessed, and costs to be audited. 


assessed, and costs against the town, as herein provided, 
shall be laid before the board of town auditors, or in towns 
not having a board of town auditors, before the town board, 
to be audited with the charges of the commissioners, jus¬ 
tices, surveyors or other persons or officers employed in 
making the assessment, and for whose services the town 
snail be liable, and the amount shall be placed upon the 
town abstract and levied and collected in the town in which 
the highway is situated, and the money so collected shall 
be paid to the commissioners of highways of such town, 
who shall pay to the owner the sum assessed to him, and 
appropriate the residue to satisfy the charges aforesaid. 

Revised from L. 1847, eh. 455, § 23. Amended by L. 1898, eh. 106. 

The amendment of 1898 removes the auditing of the assessed damages 
from the board of supervisors to the town board. 

See notes under § 86, ante. 

See notes under § 92, ante, on People esc rel. Bevins v. Supervisors , 82 
Hun, 298. 

See notes under § 87, ante, on “ Assessment of Benefits.” 

The legislature has power to lay a tax for the opening of a highway and 
may confer power to sell real estate in order to pay an assessment. 
(Striker v. Kelly , 7 Hill, 9; Rexford v. Knight, 15 Barb. 627; Stebbins v. 
Kay, 51 Hun, 589; s. c , 123 N.Y. 31.) 

Damages can be assessed as provided in the highway act and no more 
can be levied and collected of the town. ( People v. Supervisors, 28 N. Y. 
116.) 

The payment or assessment of damages, held not to be a condition pre¬ 
cedent to the right to open the road. (Case v. Thompson, 6 Wend. 634.) 

It is not a good objection to a bill for damages presented against a 
town that the road was built for state purposes. (People v. Supervisors, 
20 N. Y. 253.) 

Who is the owner in a legal sense. (Smith v. Ferris , 6 Hun, 553.) 

Liability for interest on award of damages in city. (Barnes v. New 
York, 27 Hun, 236.) 

Municipal assessment for widening a street is a lien upon the premises. 
(New York v. Colgate, 12 N. Y. 140.) 




94 


The Highway Law of New York. 


When officers of different towns disagree about highways. 


Municipal assessment in New York city under act of 1869. ( Matter of 

Broadway, 49 N. Y. 150.) 

Board of supervisors adjourning without acting upon claim for dam¬ 
ages. ( People v. Supervisors, 20 N. Y. 252.) 

See People v. Supervisors, 5 Cow. 292; Matter of Lexington Avenue, 3 
Hun, 221; Peoples. Supervisors, 16 Wend. 520. 

§ 94. When officers of different towns disagree 
about highway .— When the commissioners of highways 
of any town, or officers of any village or city having the 
powers of commissioners of highways, shall differ with 
the commissioners of highways of any other town, or with 
the officers of such a village or city having the powers of 
commissioners of highways in the same county, relating 
to the laying out of a new highway or altering an old 
highway extending into both towns, or a town and a vil¬ 
lage or city, or when commissioners of highways of a 
town in one county, shall differ with the commissioners 
of highways of a town, or the officers of a village or city 
having the powers of commissioners of highways, in 
another county, relating to the laying out of a new high¬ 
way, or the alteration of an old highway, which shall 
extend into both counties, the commissioners of highways 
of both towns, or the officers of the village or city having 
such powers, shall meet on five days' written notice, 
specifying the time and place, within some one of such 
towns, villages, or cities, given by either of such commis¬ 
sioners or officers having powers of commissioners of high¬ 
ways, to make their determination in writing, upon the * 
subject of their differences. If they cannot agree, they or 
either of them may certify the fact of their disagreement to 
the county court of the county, if the proposed highway 
is all in one county, or if in different counties, or if the 
county judge is disqualified or unable to act, to the 
supreme court; such court shall thereupon appoint three 
commissioners, freeholders of the county, not residents 




The Highway Law of New York. 


95 


Difference about improvements. 


of the same town, village or city where the highway is 
located; or if between two counties, then freeholders of 
another county, who shall take the constitutional oath of 
office, and upon due notice to all persons interested, view 
the proposed highway, or proposed alteration of a high¬ 
way, administer all necessary oaths, and take such evi¬ 
dence as they shall deem proper, and shall decide (subject 
to the approval of the court, as hereinafter provided) all 
questions that shall arise on the hearing, as to the laying 
out or altering of such highway, its location, width, 
grade and character of road-bed, or any point that may 
arise relating thereto; and if they decide to open or alter 
such highway, they shall ascertain and appraise the dam¬ 
ages, if any, to the individual owners and occupants of 
the land through which such new or altered highway is 
proposed to pass, and shall report such evidence and decis¬ 
ion to such court, with their assessment of damages, if 
any, with all convenient speed. On the coming in of 
such report, the court may, by order, confirm, modify or 
set aside the report in whole or in part, and may order a 
new appraisal by the same or other commissioners, and 
shall decide all questions that may arise before it. And 
all orders and decisions in the matter shall be filed in the 
county clerk’s office of each county where the highway is 
located, and shall be duly recorded therein. 

Revised from 1 R. eh. 16, tit . 1, art. 4, § 72, as amended by L. 1881, 

cli. 513. 

An order of the special term setting aside a report of highway commis¬ 
sioners of different counties is appealable where it does not appear that 
the commissioners first met and certified to the fact of their disagree¬ 
ment {Matter of Barrett, 7 App. Div. 482.) 

§ 95. Difference about improvements.— When the 
commissioners of highways of a town, or the officers of a 
village or city having the powers of commissioners of high- 




96 


The Highway Law of New York. 


Difference about improvements. 


ways therein, shall desire to make a new or altered high¬ 
way extending beyond the bounds of such town, village 
or city, a better highway than is usually made for a com¬ 
mon highway, with a special grade or road-bed, drainage 
or improved plan, and are willing to bear the whole or a 
part of the expense thereof beyond such bounds, but can¬ 
not agree in regard to the same, upon written applica¬ 
tion of either of the commissioners or officers, and notice 
to all parties interested, such court shall make an equit¬ 
able adjustment of the matters, and may direct, that in 
consideration of the payment of such portion of the addi¬ 
tional expense by the town, village or city that desires 
the improved and better highway, shall be equitable, its 
officers, contractors, servants and agents may go into 
such town, village or city, and make the grade and road¬ 
bed, and do whatever may be necessary and proper for 
the completion of such better highway, advancing the 
money to do it; the amount of damages to each owner or 
occupant, shall be ascertained and determined by com¬ 
missioners, who shall be appointed, and whose proceed¬ 
ings shall be conducted in the manner provided by the 
last preceding section; and upon the coming in of their 
report of damages, and of the expenses paid, such court 
shall, on notice to all parties interested, direct that the 
amount of damages assessed to each owner or occupant, 
if any, and all such expenses be paid by each, any or 
all of such towns, villages or cities as shall be just and 
equitable, and the damages and expenses assessed and 
allowed, as in this and the last preceding sections, shall 
be paid and collected as if fixed by the commissioners of 
highways of the towns, or the officers of such villages or 
cities having the powers of such commissioners. Every 
commissioner appointed as herein provided, shall be 




The Highway Law of New York. 


97 


Highway in two or more towns. 


paid six dollars for each day actually and necessarily 
employed in such service and necessary expenses. 

Revised from 1 R. S., ch. 16, tit. 1, art. 4, § 72, as amended by L. 1881, 
eh. 513. 

§ 96. Highway in two or more towns .—When ap¬ 
plication is made to lay out, alter or discontinue a high¬ 
way located in two or more towns, all notices or proceed¬ 
ings required to be served upon the commissioners of high¬ 
ways, shall be served upon the commssioners of highways 
of each town; and the commissioners appointed by the 
court, shall determine the amount of damages to be paid 
by each town, and when the towns are in different 
counties, the application for the appointment of commis¬ 
sioners shall be made to a special term of the supreme 
court held in the district where the highway or some part 
of it is located; and the same proceedings shall thereafter 
be had in the supreme court of such district as are author¬ 
ized by this chapter to be had in the county court. 

New. 

If a person living in one town initiates proceedings to lay out a high¬ 
way lying partly in that and partly in another town, and complies with 
all the statutory requirements, and the towns are in the same county, 
the county court is authorized to appoint commissioners in the matter. 
(People v. Keck , 90 Hun, 499.) 

The only notice of proceeding required to be served upon the commis¬ 
sioners is the application to lay out the highway; the statute nowhere 
requires the petitioner to serve notice of his application to the county 
court for the appointment of commissioners upon the highway commis¬ 
sioner of the town or towns. {People v. Keck , 90 Hun, 497.) 

See People v. Supervisors , 112 N. Y. 585. 

§ 97. Laying out, dividing and maintaining high¬ 
way upon town line •—An application to lay out a high¬ 
way upon the line between two or more towns shall be 
7 




98 


The Highway Law of New York. 


Highways upon town line. 


made to the commissioners of highways of each town, 
who shall act together in the matter; and, upon laying 
out any such highway, they shall divide into two or 
more highway districts, in such manner that the labor and 
expense of opening, working and keeping the same in 
repair through each of such districts may be equal, as 
near as may be, and to allot an equal number of the dis¬ 
tricts to each of the towns; each district shall be con¬ 
sidered as wholly belonging to the town to which it shall 
be allotted, for the purpose of opening and improving the 
highway and for keeping it in repair; and the commis¬ 
sioners of highways shall cause the highway and the parti¬ 
tion and allotment thereof to be recorded in the office of 
the town clerk in each of the respective towns. If such 
highway be upon a line between one or more towns and a 
city or incorporated village, such application shall also be 
made to the officers of such city or village having the 
powers of commissioners of highways, and such officers 
may agree with the highway commissioners of such towns 
as to the division of the labor and expense of opening, 
working and maintaining such highway. Whenever such 
officers shall disagree as to such division, application 
may be made for the appointment of commissioners, and 
the same procedure shall be had as is prescribed in this 
article for the settlement of disagreements between the 
highway officers of different towns. All highways here¬ 
tofore laid out upon the line between any two towns or 
between a town and a city or an incorporated village shall 
be divided and allotted or redivided and re-allotted, re¬ 
corded and kept in repair, in the manner above directed. 

Revised from 1 R. S., eh. 16, tit. 1, art. 4, §§ 73-76. Amended by L. 1894, 
eh. 727, and by L. 1895, eh. 181. 

See L. 1870, ch. 811, Appendix, post, as to allotment of parts of highway 
on town line to be maintained by respective towns. 

The omission to record the agreement or allotment of districts as 




The Highway Law of Hew York. 


99 


Final determination, how carried out. 


required by this section does not effect its validity. {Jones v. City of 
Utica , 16 Hun, 441.) 

See People v. Mosier, 56 Hun, 64. 

§ 98. Final determination, how carried out .— The 
final determination of commissioners appointed by any 
court, relating to the laying out, altering or discontinu¬ 
ing a highway, and all orders and other papers filed or 
entered in the proceedings, or certified copies thereof from 
the court where such determination, order and papers are 
filed and entered, shall be forthwith filed and recorded in 
the town clerk’s office of the town where the highway is 
located; and every such decision shall be carried out by 
the commissioners of highways of the town, the same as if 
they had made an order to that effect. 

New. 

See notes under § 81, ante. 

Whenever it shall be finally determined that a highway shall be laid out, 
it is made the duty of the commissioner of highways to carry out such 
determination, and thereafter he has general charge of the same. But 
until such determination is finally made, he has no part or duty in the 
proceedings. 

Upon a review by certiorari of the proceedings in county court relative 
to laying out a highway, the highway commissioner is not properly a 
party defendant. {People, c fee. v. County Court , 92 Hun, 13.) 


§ 99. Highways abandoned. — Every highway that 
shall not have been opened and worked within six years 
from the time it shall have been dedicated to the use of 
the public, or laid out, shall cease to be a highway; but 
the period during which any action or proceeding shall 
have been, or shall be pending in regard to any such high¬ 
way, shall form no part of such six years; and every high¬ 
way that shall not have been traveled or used as a highway 
for six years, shall cease to be a highway. The commis¬ 
sioners of highways shall file, and cause to be recorded in 




100 


The Highway Law of Hew York. 

Highways abandoned. 


the town clerk’s office of the town, written description, 
signed by them, of each highway so abandoned, and the 
same shall thereupon be discontinued. 

Revised from L. 1853, eh. 174, § 15, and 1 R. S., eh. 16, tit. 1, art. 4, § 99, 
as amended by L. 1881, cli. 311, § 1. 

See L. 1895, ch, 611, Appendix, post, as to the abandonment of highways 
by towns which have expended three hundred thousand dollars or more 
for macadamizing purposes; and see, also, L. 1896, ch 464, Appendix, post, 
as to the payment of damages in such case. 

See notes under § 80, ante. 

Declaratory of the statute. ( Ludlow v. Oswego. 25 Hun, 260; Horey v. 

Haverstraw, 124 N. Y. 273; People v. N. Y. C. R. R. Co., 69 Hun, 166.) 

Once established, a highway does not cease to be such until it has been 
discontinued by the proper authorities. ( Driggs v. Phillips, 103 N. Y. 77.) 

The public may abandon its claim to a public highway, and non-user 
for twenty years is some evidence of such intent. When in connection 
with non-user there is affirmative evidence of a clear determination to 
abandon, the public interest is extinguished. ( Crain v. Fox, 16 Barb. 
184; Corning v. Gould, 16 Wend. 531; Amsbry v. Hinds, 46 Barb. 622; s. c., 
48 N. Y. 57; Woodruff v. Paddock, 56 Hun. 288; Matter of Opening of 
Beck Street, 19 Misc. 571; Falvey v. Bridges, 40 St. Rep. 732.) 

When a road is laid out as an entirety and only a part is opened and 
worked, and the remainder remains entirely closed, the public loses its 
rights therein after the lapse of six years, and such rule is applicable to a 

city street where an easement only is acquired. (. Buffalo v. Hoffeld, 6 
Misc. 197.) 

Under this section, it is not necessary that the highway should be 
worked in every part so long as it is passable for travelers. ( McVee v. 
Watertown, 92 Hun, 306.) 

The failure to open and work a portion of a highway would not invali¬ 
date so much thereof as had been opened and worked in compliance with 
the statute. ( Vandemark v. Porter, 40 Hun, 397; Walker v. Cay wood, 31 
N. Y. 51.) 

That part of a highway not opened and worked ceases to be a highway 
for any purpose. ( Christy v. Newton , 60 Barb. 332.) 

Where a road was partly opened and worked during the year it was laid 
out, and was partly worked throughout the route and more or less 
traveled every year thereafter for twelve years, it was held to have been 






The Highway Law of New York. 


101 


What are highways. 


opened and worked within six years. {Marble v. Whitney, 28 N. Y. 297.) 

Effect of compulsory abandonment by the public. ( Freeholders v. Glen 
and Florida, 20 St. Rep. 394.) 

Abandonment by plank road company. {Heath v. Barman, 49 Barb. 
496.) 

This section held not to apply to streets laid out in the cities of the 
state. {Matter of Lexington Ave., 29 Hun, 305; s. c., 92 N. Y. 629; Van- 
derbeck v. City of Rochester, 46 Hun, 87; s. c., 122 N. Y. 285; but see 
Buffalo v. Hoff eld, 6 Misc. 197.) 

See Lyon v. Munson, 2 Cow. 426, construing the act of 1813 as to the 
abandonment of highways. 

See Matter of Opening of Beck Street, 19 Misc. 571; DePeyster v. Mali, 27 
Hun, 439; s. c., 92 N. Y. 262; Blackman v. Riley, 138 N. Y. 318. 


§ 100. Highways by use .—All lands which shall have 
been used by the public as a highway for the period of 
twenty years or more, shall be a highway, with the same 
force and effect as if it had been duly laid out and recorded 
as a highway, and the commissioners of highways shall 
order the overseers of highways to open all such high¬ 
ways to the width of at least two rods. 

Revised from 1 R. S., ch. 16, tit. 1, art. 4, §§ 100,101. 

What Are Highways. 

Definition of Highway. 

A highway may be defined as any place open and free to the public for 
passage either on foot or by vehicle. In such manner did the English law 
construe the term. Mr. Cook, in his Manual of Highway Laws, says: 
“ The term ‘highway’ extends to all public ways, and includes carriage¬ 
ways, horseways, footways, streets, turnpike and plank roads, railroads, 
ferries, canals and navigable rivers.” Abundant authority for such state¬ 
ment may be found in the common law and the case law of this state. 
The term “road” in the New York statutes is used synonymously with 
“ highway.” {Brace v. N. Y. C. R. R. Co., 27 N. Y. 269.) 

A highway may be of any size or width; it need not be wide enough to 
permit vehicles to pass each other. {Rex v. Lyon, 3 Dow. & R. 497). It 
may be a footpath or bridleway only. {Rex v. County . 13 East, 95.) 





102 


The Highway Law of New York. 


What are highways. 


Piers. 

A public pier or landing place is a highway. ( Radivay v. Briggs , 37 N. 
Y. 256; People v. Lambier, 5 Den. 9; Fowler v. Mott , 19 Barb. 204.) 

Driftway. 

A "way on which cattle are driven, formerly termed a “ driftway,” is a 
highway, as cattle may be driven over any public highway. ( Ballard v. 
Dyson , 1 Taunt. 285.) 

Streets. 

City and village streets, open to the public, are public highways. 
(Brace v. N. Y. C. R. R. Co., 27 N. Y. 271; Benedict v. Goit, 3 Barb. 259; 
Adams v. R. R. Co., 11 Barb. 449.) See, also, Corbett v. Troy, 53 Hun, 
228. 

Shores. 

The margins of navigable lakes and rivers in this state are not highways 
except by express grant or prescription. (Ledyard v. Ten Eyck, 36 Barb. 
102.) And a private wharf extending into a navigable river does not 
become a highway thereby (Wetmore v. Atlantic & C. Co., 37 Barb. 70), 
unless such wharf or bulk-head forms the termination of a public highway 
(People v. Lambier, 5 Den. 9.) The seashore is not a public highway. The 
right to pass over may exist, but no claim for damages for a defect therein 
can lie. (Murphy v. Brooklyn , 98 N. Y. 642; s. c., 118 N. Y. 575.) 

Cul de Sac. 

It is now well settled that a highway need not be a thoroughfare. A 
cul de sac may be a highway. (Rugby Charity v. Merriweather, 11 East, 
375; Bateman v. Black, 14 Eng. Law & Eq. 69; People v. Kingman, 24 
N. Y. 559; People v. Van Alstyne, 3 Keyes, 35; Hickok v. Trustees, 41 
Barb. 457; McCarthy v. Whalen , 19 Hun, 503; Saunders v. Townsend, 26 
Hun, 308; contra. Trustees v. Otis, 37 Barb. 50.) A highway terminating 
in a navigable river is not a cid de sac, as there is still a thoroughfare, the 
right of passage extending from one kind of highway to another. (People 
v. Lambier, 5 Denio, 9.) 

See, also, Wiggins v. Tallmadge, 11 Barb. 457. 

Ferries. 

A ferry is a public highway and the public have a right to embark and 








The Highway Law of New Yoke. 


103 


What are highways. 


disembark at the landing places, provided the landing places be highways. 
(.Fowler v. Mott, 19 Barb. 204; Peters v. Kendal , 6 Barn. & Cress. 703.) 

Turnpikes. 

A highway does not cease to be such for general purposes by being con¬ 
verted into a turnpike or plank road. ( Benedict v. Goit, 3 Barb. 459; 
Walker v. Cay wood, 31 N. Y. 51.) 

Where a plank road company abandons its road, such road passes to the 
town, though not originally a public highway. ( Heath v. Barnaul , 49 
Barb. 496; People v. Supervisors, 151 N. Y. 190.) 

Railroads. 

A railroad is a public highway to be used in a particular manner. {Rex 
v. Railway Co., 2 Barn. & Aid. 646; Beekman v. Railroad Co., 3 Paige, 74; 
Sun Publishing Assn. v. The Mayor, 152 N. Y. 257.) 

When a railroad company abandons its road it becomes a public high¬ 
way. {Hayward v. Mayor , 7 N. Y. 314; Rexford v. Knight, 11 N. Y. 308.) 

Canals. 

Canals, authorized by public law, are public highways, with the right 
of toll attached. {Robinson v. Chamberlain, 34 N. Y. 389; Conkling v. 
Phoenix Mills, 62 Barb. 229.) 

Navigable Rivers. 

A navigable river is a public highway. (10 Mod. 382.) 

At common law, a river was navigable in which the tide ebbed and 
flowed. {Exparte Jennings, 6 Cow. 5!8; Morgan v. King, 35 N.Y. 458.) 

In this state it seems to be the law that a navigable river is one navig¬ 
able in fact. {People v. Canal Appraisers, 33 N. Y. 461.) 

A river, navigable in fact, is, in this state, one that is so far navigable 
in its natural state as to be of public use in the transportation of property. 
{Morgan v. King , 35 N. Y. 454; Munson v. Hunger/ord, 6 Barb. 265; Curtis 
v. Keesler, 14 Barb. 511.) 

Capacity of a stream to float logs, as affecting its character as a public 
highway. {DeCamp v. Thompson, 16 App. Div. 528.) 

Use of waterway for floating logs. {Matter of Burns, 155 N. Y. 23.) 

Rivers and streams as public highways. (Navigation Law, §§ 70-76, 
Appendix, post.) 

It is the general rule that public streets which lead to navigable waters 




104 


The Highway Law of New York. 


Highways by use. 


keep even pace with the extension of the land; but where it was the 
evident intention of the one who dedicated the land for the street that the 
highway should terminate at a ferry landing, land redeemed from the 
waters by the ferry owners does not become part of the highway. ( Mark 
v. West Troy, 151 N. Y. 453.) 

• Particular Cases. 

When streets become highways under charter of city of Troy. ( Caven 
v. City of Troy, 15 App. Div. 163.) 

New York and Albany post road preserved forever as a public highway. 
(L. 1896, ch. 423, Appendix, post.) 

Way by Necessity. 

See Hines v. Hamburger, 14 App. Div. 577. 

Highways by Use. 

Premises used as highways by the public for twenty years, even without 
dedication, become public highways. ( Town of Corning v. Head, 86 Hun, 
12; City of Cohoes v. Railroad Co., 134 N. Y. 397; James v. Sammis, 132 
N. Y. 239; City of Cohoes v. D. & H. C. Co., 134 N. Y. 397; Snyder v. Plass, 
28 N. Y. 465; Porter v. Village of Attica, 33 Hun, 605; Galatian v- 
Gardner, 7 Johns. 106; Devenpeck v. Lambert, 44 Barb. 596; Chapman v. 
Sivan, 65 Barb. 210; Matter of Shawangunk Kill Bridge, 100 N. Y. 642; 
Wiggins v. Tallmadge , 11 Barb. 457; Miller v. Garlock , 8 Barb. 153; 
People v. Fowler, 43 St. Rep. 415; Kelsey v. Burgess , 35 St. Rep. 369; Post 
v. Ry. Co., 34 St. Rep. 487.) 

The mere fact that a portion of the public travel over a road for twenty 
years cannot make it a highway, and the burden of making highways 
and sustaining bridges cannot be imposed upon the public in that way. 
The user must be like that of highways generally. The road must not 
only be traveled upon, but it must be kept in repair or taken in charge 
and adopted by the public authorities. ( Speir v. New Utrecht, 121 N. Y. 
420; People v. Osborn, 84 Hun, 441; Flack v. Green Island, 122 N. Y. 107; 
Matter of Hand Street, 52 Hun, 206; People v. Loehfelm, 102 N. Y. 1; 
Vandermark v. Porter, 40 Hun, 397; Harriman v. Hoice, 78 Hun, 280.) 

A particular place, claimed to be a public highway, cannot be proven to 
be such by parol evidence alone. (. Harrington v. People, 6 Barb. 607.) 

A private way opened by the owners of land through which it passes 
for their own use does not become a public highway merely because the 




The Highway Law of New York. 


105 


Highways by use. 


public are also permitted for many years to travel over it. ( Speir v. New 
Utrecht, 121 N. Y. 420; Harriman v. Howe , 78 Hun, 280; People v. Osborn , 
84 Hun, 441; see, also, In re Howland Bridge , 14 Supp. 845.) 

It seems to have been formerly the doctrine that a highway by use 
must be limited in width and location to the actual use thereof, and that 
commissioners could not widen or otherwise alter the boundaries. 
{Peoples. Cortland , 24 Wend. 491; Talmadge v. Huntling , 29 N. Y. 447; 
Wakeman v. Wilbur, 21 St. Rep. 556.) 

As to the right to open an old road to the width of two rods. ( Snyder 
v. Plass, 28 N. Y. 465.) 

The failure of the highway commissioners to open an old highway to its 
proper width for thirty years does not extinguish the rights of the public 
in the parts not opened. ( Walker v. Caywood , 31 N. Y 51.) 

A highway by use not laid out according to statute may be less than 
four rods wide. ( Harlow v. Humiston, 6 Cow. 189.) 

The failure to record is immaterial, as recording does not establish or 
create a right, but perpetuates the evidence of such right. ( Galatian v. 
Gardner , 7 Johns. 106; Cole v. Fcm Keuren, 4 Hun, 262; Lewis v. Railroad 
Co., 123 N. Y. 496.) 

A cul de sac may become a public highway by dedication and accept¬ 
ance, arising principally through user. (Vandemark v. Porter, 40 Hun, 
397; People v. Kingman, 24 N. Y. 559: Wiggins v. Tallinadge, 11 Barb. 
457; People v. Van Alstyne, 3 Abb. Ct. of App. Dec. 575.) 

See note to Whitesides v Green, 57 American State Reports, 740. See, 
also, Alpaugh v. Bennett, 59 Hun, 45; People v. Lawson, 17 Johns. 277; 
Ausable Co. v. Hargraves, 16 St. Rep. 318; s. c., 121 N. Y. 695; Matter of 
Trustees of Olean, 37 St. Rep. 350; Wicks v. Thompson , 38 St. Rep. 340; 
Denning v. Roome, 6 Wend. 651; Coldenv. Thurber, 2 Johns. 424; Ivory 
v. Deer Park, 116 N. Y. 476; Lansing v. Wiswall, 5 Den. 213. 

The Uses of Highways and Ownership of the Fee. 

The Fee of the Highway. 

The ownership of the fee of a highway under the Dutch law was in the 
public. Subsequently it became vested in the English government and 
was only transferred by grant. ( Mott v. Clayton , 9 App. Div. 181.) 

The ownership of the fee of a highway remains in the original owner; 
the public have but a right of way. (C ortelyou v. Van Brunt, 2 Johns. 
357; Yates v. Hathaway, 15 Johns. 447; Babcock v. Lamb, 1 Cow. 238; 






106 


The Highway Law of New Yoke. 


Ownership of the fee. 


Gedney v. Earl , 12 Wend. 98; Presbyterian Society v. Railroad Co., 8 Hill, 
587; Higgins v. Reynolds, 81 N. Y. 151; Mann v. Worrall, 53 N. Y. 44; 
Turnpike Co. v. Smith, 15 Barb. 355; People v. Law, 34 Barb. 494; 
Cemetery v. Railroad Co., 7 Hun, 655; Matter of City of Buffalo, 131 N. 
Y. 293; Woodruff v. Paddock, 130 N. Y. 618.) 

A grant of land by the state describing such land as abutting upon a 
highway conveys to the center thereof. ( Cheney v. Railroad Co., 8 App. 
Div. 620.) 

The rule that an owner of lands bounded by a highway has a fee to the 
center of the road subject only to the public easement is applicable to the 
streets of New York city. ( Mott v. New York, 2 Hilt. 358.) 

In the city of New York, the fee of the streets is held to be in the city, 
and the legislature may appropriate them to such public use as a rail¬ 
road. {People v. Kerr, 27 N. Y. 188.) But such grant may not be made 
by the common council of the city except for the purposes of carrying 
out the legislative grant. {Milhau v. Sharp, 27 N. Y. 611; Davis v. 
Mayor, 14 N. Y. 506; People v. Railroad Co., 30 How. 121.) 

When the title of the owner to lands taken for the opening of streets in 
the city of New York under the acts of 1813 and 1818, was divested. {Det- 
nold v. Drake, 46 N. Y. 318; Hannersly v. New York, 67 Barb. 35.) 

Where an old road is vacated, the fee is in the adjoining owners and 
not in the public. {Van Amringe v. Barnett, 8 Bos. 357; Matter of John 
St., 19 Wend. 659; Yates v. Hathaway, 15 Johns. 447; Falveyv. Bridges, 40 
St. Rep. 732; s. c., 133 N. Y. 663.) 

Navigable rivers, being public highways, the bed of the stream belongs 
to the state. Otherwise as to non-navigable streams. {People v. Canal 
Appraisers, 33 N. Y. 461.) The state has no right, without compensation 
to destroy the property of individuals by making by artificial means a 
stream navigable. {Canal Commissioners v. People, 5 Wend. 423; Canal 
Appraisers v. People, 17 Wend. 571; Commissioners v. Kempshall, 20 
Wend. 404.) 

Canals, though public highways, belong to the state. The fee of the 
lands taken for them is in the state, and upon abandonment does not revert 
to the original owner. {Rexford v. Knight, 11 N. Y. 308.) 

Where a highway has been laid out upon the margin of a grantor’s 
land, the ownership of the fee therein passes by his subsequent grant. 
{Haberman v. Baker , 128 N. Y. 253.) 




The Highway Law of Hew York. 


107 


Ownership of the fee. 


Adverse possession of a highway does not ripen into title unless exclu¬ 
sive and continuous for twenty years. (Bliss v. Johnson, 94 N. Y. 235.) 

Title to a portion of a public highway cannot be acquired by adverse 
possession. (Morrison v. N. Y. Elevated R. R. Co., 74 Hun, 398.) 

Where the conveyance of land describes it as bounded by a highway, 
the particular circumstances of the case must determine whether or not 
an ownership to the center of the highway was intended to be granted. 

(Post v. Hazlett, 36 St. Rej). 219; Dexter v. Riverside Mills, 39 St. Rep. 933; 
De Witt v. Van Schoyk, 110 N. Y. 7; Mott v. Clayton, 9 App. Div. 181; 
Haight v. Littlefield, 71 Hun, 285; Holloway v. Southmayd, 139 N. Y. 390; 
Lord v. Atkins, 138 N. Y. 184.) 

Where land is granted bounded by a contemplated street only, a fee to 
the middle of the street is not passed; but the grantees have a perpetual 
right of way over it. {Matter of 17th St., 1 Wend. 262; Livingston v. New 
York , 8 Wend. 85.) 

Where land is taken for the laying out of a street, the owner of the fee 
may excavate the soil beneath the surface of the road provided he does not 
interfere with the public easement. {McCarthy v. Syracuse, 46 N.Y. 194; 
Rummell v. Railroad Co., 30 St. Rep. 235; Darker v. Beck, 32 St. Rep. 
193.) 

Materials taken from a street in making city improvements belong 
neither to the city nor to the contractor, but to the owner of the fee. 
{Fisher v. Richardson, 6 Lans. 225.) 

The fundamental idea of a highway is a place for the uninterrupted 
passage of men, animals and vehicles, and to afford light, air and access 
to the property of abutting owners; in the latter respect, an abutting 
owner has a greater interest in the highway than the general public; con¬ 
sequently any permanent or exclusive use of any part of the highway by 
any person or corporation is illegal. {Palmer v. Larchmont Electric Co., 
6 App. Div. 12.) 

Although streets in a city and roads in a country district are equally 
public highways, yet the former are subject to more burdens and uses 
than the mere right of passage. City highways may be used for the 
laying down of water mains, gas mains, sewers, lamps, etc., while such a 
use cannot be made of country highways without legislative enactment. 
This use of city streets has been extended to the erection of a soldiers’ 
monument. {Milhau v. Sharp, 15 Barb. 210; People v. Kerr, 27 N. Y. 202; 
Kelsey v. King, 32 Barb. 410; Tompkins v. Hodgson, 4 Supp. 435; Plant v, 




108 


The Highway Law of New York. 


Uses of highways. 


R. R. Co., 10 Barb. 16; Chapman v. R. R. Co., 10 Barb. 360.) It seems, 
however, that this doctrine is not applicable to highways acquired by 
dedication. ( Williams v. R. R. Co., 16 N. Y. 97.) 

A further easement for public use may be imposed upon land already 
used as a public highway. ( Village of Canandaigua v. Benedict, 24 App. 
Div. 348.) 

Where a street is taken for other municipal uses than the mere right of 
passage, an abutting owner who has a fee therein is entitled to substantial 
damages. ( Matter of City of Buffalo, 131 N. Y. 293.) 

Steam Railroads. 

The easement of an owner in fee is not lost by his dedication of the land 
for a public highway, and he is entitled to compensation for use thereof 
by a railroad. ( Syracuse Salt Co. v. Railroad Co., 67 Hun, 153, and cases 
cited.) 

A railroad laid in a public highway or street is a new burden upon the 
owners of the fee and they are entitled to compensation therefor. 
{Williams v. Railroad Co., 16 N. Y. 97; Trustees v. Railroad Co., 3 Hill, 
567; Fletcher v. Railroad Co., 25 Wend. 462; Mahon v. Railroad Co., 24 
N. Y. 658; Robinson v. Railroad Co., 27 Barb. 512; Wager v. Railroad 
Co., 25 N. Y. 526; Carpenter v. Railroad Co., 24 N. Y. 655; Broiestadt v. 
Railroad Co., 55 N. Y. 220; McCruden v. Rochester Ry. Co., 5 Misc. 59.) 

An action of ejectment, or of trespass for damages, or in equity for an 
injunction, will lie where a railroad has used a street or highway without 
compensating the owner of the fee. ( Wager v. Railroad Co., 25 N. Y. 
526; Lozier v. Railroad Co., 42 Barb. 465; Church v. Railroad Co., 3 Hill, 
567; Craig v. Railroad Co., 39 N. Y. 404.) 

An abutting owner of land on a street closed for railroad purposes is 
deprived of an easement and should be compensated therefor even though 
the fee to the street be in the city. ( Egerer v. Railroad Co., 130 N. Y. 
108.) 

Where a railroad company constructs its road over or along a turnpike 
or plank road, the company operating the latter is entitled to damages. 
{Plank Road v. Railroad, 20 Barb. 644; Seneca Road Co. v. Railroad Co., 
5 Hill, 170; Railroad Co. v. Northern Turnpike Co., 16 Barb. 100; Matter 
of Hamilton Avenue, 14 Barb. 405; Matter of Flatbush Avenue, 1 Barb. 
286.) 







The Highway Law of New Yoke. 


109 


Uses of highways. 


As to the consent of highway commissioners to the construction of a rail¬ 
road upon a highway. (L. 1835, ch. 300, Appendix, post.) 

The consent of the highway commissioners is an essential prerequisite 
to the right to maintain a proceeding for taking a highway for railway 
purposes. {Matter of Rochester Railway Co., 123 N. Y. 351.) 

A railroad crossing a highway. (Railroad Law, §§ 4,11, 20, Appendix, 
post.) 

Duty of a railroad company to maintain a highway at a crossing in a 
safe condition for public use. {Lowell v. Railroad Co., 15 App. Div. 218; 
Galev. Railroad Co., 76 N. Y. 594; Bryant v. Town of Randolph , 133 
N. Y. 77; Schild v. Railroad Co., 133 N. Y. 446.) 

As to highway crossing railroad, see § 90, ante ; as to duties of railroads 
at crossings, § 157, post. 


Elevated Railroads. 

The erection of elevated railroad structures without the consent of the 
abutting owners is illegal; and an abutter may recover damages even 
though the premises are in the possession of tenants. {Story v. N. Y. 
Elevated R. R. Co., 90 N. Y. 122; Fobesv. Railroad Co., 121 N. Y. 505; 
Kernochan v. N. Y. Elevated R. R. Co., 128 N. Y. 559; Pappenlieim v. 
Metropolitan Ry. Co., 128 N. Y. 436; Kearney v. Metropolitan Ry. Co., 129 
N. Y. 76; Mortimer v. Manhattan Ry. Co., 129 N. Y. 81; Bohm v. Metro¬ 
politan Ry. Co., 129 N. Y. 576; Sterry v. N. Y. Elevated R. R. Co., 129 N. 
Y. 619; Hughes v. Metropolitan Ry. Co., 130 N. Y. 14; Hughes v. N. Y. 
Elevated R. R. Co., 40 St. Rep. 581; Kane v. N. Y. Elevated R. R. Co., 
125 N. Y. 164; Thompson v. Manhattan Ry. Co., 130 N. Y. 360; Moore v. 
N. Y. Elevated R. R. Co., ISO N. Y. 523; Lahr v. Metropolitan Ry. Co., 
104 N.Y. 269; Drucker v. Manhattan Ry. Co., 106 N. Y. 157; American 
Bank Note Co. v. N. Y. Elevated R. R. Co., 129 N. Y. 252; Becker v. 
Metropolitan Ry. Co., 131 N. Y. 509; Storck v. Metropolitan Ry. Co., 131 
N. Y. 514; Roberts v. N. Y. Elevated R. R. Co., 128 N. Y. 455; McGean v. 
Metropolitan Ry. Co., 133 N. Y. 9; Mitchell v. Metropolitan Ry. Co., 45 
St. Rep. 318; Pond v. Metropolitan Ry. Co., 112 N. Y. 186; Ottinger v. N. 
Y. Elevated R. R Co., 43 St. Rep. 817; Slater v. Manhattan Ry. Co., 45 
St. Rep. 153; Sperb v. Metropolitan Ry. Co., 61 Hun, 539; Adler v. Metro¬ 
politan Ry. Co., 46 St. Rep. 523; Steimmetz v. Metropolitan Ry. Co., 18 
Supp. 209; Brushy. Manhattan Ry. Co., 13 Supp. 908; Bisclioff v. N. Y. 
Elevated R. R. Co., 46 St. Rep. 863; Rush v. Manhattan Ry. Co., 44 St. Rep, 




110 


The Highway Law of New York. 


Uses of highways. 


Ill; Gray v. Manhattan Ry. Co., 35 St. Rep. 32; Jones v. 'N. Y. Elevated 
R. R. Co., 45 St. Rep. 667; Smith v. N. Y. Elevated R. R. Co., 44 St. Rep. 
875; Rich v. Manhattan Ry. Co., 46 St. ,Rep. 673; Bookman v. N. Y. Ele¬ 
vated R. R. Co., 137 N. Y. 302; Cook v. N. Y. Elevated R. R. Co., 3 Misc. 
248; Mooney v. N. Y. Elevated R. R. Co., 3 Misc. 612; White v. Manhat¬ 
tan Ry. Co., 139 N. Y. 19; Bischoff v. N. Y. Elevated R. R. Co., 138 N. 
Y. 257.) 


Street Railroads. 

For statutory provisions, see Railroad Law, Article IV. 

As to street surface railroad crossing track of steam railroad. (L. 1893, 
ch. 239, Appendix, post.) 

The same rule applies to horse railroads as to those operated by steam. 
A new burden is imposed and there must be additional compensation to 
the owners of the fee. (Craig v. Railroad Co., 39 N. Y. 404; Wager v. 
Railroad Co., 25 N. Y. 523; Ramsden v. Railway, 1 Exch. 723; Kellinger 
v. Railroad Co., 50 N. Y. 206.) 

A street railroad company is bound to lay its tracks in a proper manner 
and keep them in repair. (Fash v. Railroad Co., 1 Daly, 148; Worster v. 
Railroad Co., 50 N.Y. 203; Mayor v. Railroad Co., 3 Lans. 270.) 

Telegraph and Telephone Lines. 

For statutory provisions as to construction of telegraph and telephone 
lines, see Transportation Corporations Law, § 102; see, also, the series of 
American Electrical Cases. 

As to the right to erect poles for telephone wires in city streets 
under § 102 of the Transportation Corporations Law, see City of Utica v. 
Utica Telephone Company, 24 App. Div. 361. 

Neither the state nor any corporation can appropriate any portion 
of a rural highway by setting up poles for the support of telegraph or 
telephone wires. (Eelsy v. American T. & T. Co., 143 N. Y. 133; Blash- 
field v. Tel. & Tel. Co., 18 Supp. 250, and cases cited; s. c., 71 Hun, 532.) 

The right of a telephone company to string its wires along a street is 
subordinate to that of a street railroad company to operate its road 
thereon, and the latter cannot be enjoined from using an electric wire in 
such street to propel its cars, although there is an interference with the 
electric current of the former company. (.Hudson River Telephone Co. v. 
Watervliet Ry. Co., 135 N. Y. 393, and cases cited.) 




The Highway Law of New York. 


Ill 


Uses of highways. 


Electric Light Companies. 

As to use of highway by electric light company, see Transportation 
Corporations Law, § 61; see, also, American Electrical Cases 

An electric company cannot erect poles on a country highway without 
the consent of the abutting owners. ( Palmer v. Larchmont Electric Co., 

6 App. Div. 12.) 

Pipes. 

See § 14, ante, as to drainage, sewer and water pipes in highways. 

See Transportation Corporations Law, §§ 33, 43, 45, 61, 80, 82, Appendix, 
post, for statutory provisions as to the use of highways by various pipe 
line corporations. 

See Village Law, § 226, Appendix, post, as to the laying of water pipes 
in highways outside of villages. 

See L. 1897, ch. 317, Appendix, post, as to laying of pipes in highways 
for heating purposes. 

A gas company has no authority to lay its pipes in a country highway 
without the consent of the abutting owners. ( Gaslight Co. v. Calkins, 62 
N. Y. 386.) 

Water pipes may be laid in a village street without compensation. 

(Whitcher v. Water Works Co., 66 Hun, 619; s. c., 142 N. Y. 626.) 

Sewers may not be laid in highways without the consent of the abutting 
owners. ( Van Brundt v. Town of Flatbush, 128 N. Y. 50.) 

Turnpike Corporations. 

For statutory provisions, see Transportation Corporations Law, §§ 120- 
151, Appendix, post. 

A turnpike or plank road company which has acquired the right to use 
a public highway for the construction and location of its road stands in 
the place of the town highway commissioners and is subject to all their 
duties and liabilities to the public. (. Benedict v. Goit, 3 Barb. 459; Dexter 
v. Broat, 16 Barb. 337; Ireland v. Plank Road Co., 13 N. Y. 526.) 

Ferries. 

It is not an extra burden upon a highway for the public to land thereon 
from a ferry. ( Fowler v. Mott, 19 Barb. 204; Peters v. Kendal, 6 Barn. & 

Cress. 703.) 




112 


The Highway Law of New York. 


Uses of highways. 


Extra Viam. 

The right of the public to pass along a highway extends also to unin¬ 
closed lands adjacent thereto ( Cleveland v. Cleveland, 12 Wend. 172), and 
to any lands adjacent to a highway that has become impassable. ( Williams 
v. Safford, 7 Barb. 309.) But the impassable highway must be a public, 
not a private way. ( Bullard v. Harrison, 4 M. & S. 387.) And the public 
must travel as near the highway and use as little of the adjacent land as 
possible. ( White v. Wiley, 36 St. Rep. 102.) 

Miscellaneous Rights and Uses. 

See notes under § 157, post, as to the law of the road and of crossings, 
and § 163, post, as to the free use of highways by all persons and vehicles. 

See Railroad Law, § 53, as to the right to walk upon railroad tracks. 

See Indian Law, §§ 15, 26, as to freedom of Indians from paying toll. 

See L. 1897, ch. 483, Appendix, post, as to passage of timber and logs 
over rivers. 

All the land within a highway fence is not necessarily subject to the 
right of way and may be occupied by the owner, ( Harlow v. Humiston, 
6 Cow. 189.) 

The public have a right of way over every stream capable of transport¬ 
ing property. ( Morgan v. King, 35 N. Y. 454.) 

The public have a right to use the tracks of a horse railroad for travel 
with horses and wagons. ( Fettrich v. Dickenson, 22 How. 248.) But one 
driving on the tracks is bound to use greater care than on the rest of the 
road as the company has the right of way for its cars. ( Wilbrand v. Rail¬ 
road Co., 3 Bos. 314; Hegan v. Railroad Co., 15 N. Y. 380; Whitaker v. 
Railroad Co., 51 N. Y. 295.) 

Discussion as to rate of speed at which trains may pass over country 
highways. ( Hunt x. Fitchburg R. R. Co., 22 App. Div. 212.) 

The regulation of the rate of speed of cars in streets and highways can¬ 
not be the subject of contract either by legislature or common council. 
(.Brooklyn v. Nassau R. R. Co., 20 App. Div. 31.) 

See Westlake v. Koch, 45 St. Rep. 481; Nicoll v. Sands, 131 N. Y. 19. 

Penal Code Provisions. 

§ 275. Definition of the offense.—T he following acts, or any of 
them, except as permitted by chapter four hundred and seventy-nine of 
the laws of eighteen hundred and eighty-seven or the acts amendatory 
thereof, constitute a disturbance of a religious meeting: 




The Highway Law of New York. 


113 


Fences to be removed. 


3. Obstructing in any manner r witliout authority of law, within the 
like distance, free passage along a highway to the place of such meeting. 

(‘‘The like distance” is two miles.) 

§ 666. Running Horses on Highway, a Misdemeanor. — A person 
driving any vehicle upon any plank road, turnpike or public highway, 
who unjustifiably runs the horses drawing the same, or causes, or permits 
them to run, is guilty of a misdemeanor. 

§ 674d. Unlawfully exacting Itoll of a member of the national 
guard. — Any person, master or keeper of a toll-gate, toll-bridge or ferry, 
or any person in charge thereof who wilfully hinders or delays any mem¬ 
ber of the national guard or refuses free passage to any such member going 
to or returning from any parade, encampment, drill or meeting which he 
may be by law required to attend, or wilfully hinders, delays or refuses 
free passage to any conveyance or military property of the state in charge 
of a member of said guard, is guilty of a misdemeanor. 

Military Code Provision. 

§ 148. Exemption of members of national guard from arrest ; 

RIGHT OF WAY ; FREE PASSAGE OF TOLL-GATES, BRIDGES AND FERRIES.— 
No person belonging to the military forces of this state shall be arrested 
on any civil process while going to, remaining at, or returning from any 
place at which he may be required to attend for military duty. Any por¬ 
tion of the national guard and militia parading, or performing any duty, 
according to law, shall have the right of way in any street or highway 
through which they may pass, provided the carriage of United States 
mails, the legitimate functions of the police, and the progress and opera¬ 
tions of fire engines and fire departments, shall not be interfered with 
thereby. Any person belonging to the military forces of the state, going 
to or returning from any parade, encampment, drill or meeting which he 
may be required by law to attend, shall, together with his conveyance and 
the military property of the state, be allowed to pass free through all toll- 
gates and over all toll-bridges and ferries. 


§ 101. Fences to be removed .—Whenever a highway 
shall have been laid out through any inclosed, cultivated 
or improved lands, in conformity to the provisions of 
this chapter, the commissioners of highways shall give to 
8 





114 


The Highway Law of New York. 


Penalty for falling trees. 


the owner or occupant of the land through which such 
highway shall have been laid, sixty days’ notice in writ¬ 
ing to remove his fences; if such owner shall not remove 
his fences within the sixty days, the commissioners shall 
cause them to be removed, and shall direct the highway 
to be opened and worked. 

Revised from 1 R. S., ch, 16, tit. 1, art. 4, § 96. 

See notes under §§ 104, 105, post, as to the removal of fences as encroach¬ 
ments ; village trustees as fence viewers, Village Law, § 88, sub. 14. 

See Drake v. Rogers, 3 Hill, 60S; Wetmore v. Tracy , 14 Wend. 250; Case 
v. Thompson, 6 Wend. 634; Cooper v. Bean , 5 Lans. 318. 

| 102. Penalty for falling trees. —If any person shall 
cut down any tree on land not occupied by him, so that 
it shall fall into any highway, river or stream, unless by 
the order and consent of the occupant, the person so 
offending shall forfeit to such occupant, the sum of one 
dollar for every tree so fallen, and the like sum for every 
day the same shall remain in the highway, river or stream. 

Revised from 1 R. S., ch. 16, tit. 1, art. 5, § 111. 

§ 103. Fallen trees to be removed .—If any tree shall 
fall, or be fallen by any person from any inclosed land 
into any highway, any person may give notice to the 
occupant of the land from which the tree shall have fallen, 
to remove the same within two days; if such tree shall 
not be removed within that time, but shall continue in 
the highway, the occupant of the land shall forfeit the 
sum of fifty cents for every day thereafter, until the tree 
shall be removed. 

Revised from 1 R. S., ch. 16, tit. 1, art. 5, § 110. 

§ 104. Penalty for obstruction or encroachment. 
— Whoever shall obstruct or encroach upon any highway, 





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115 


Penalty for obstruction or encroachment. 


or shall unlawfully fill up or place any obstruction in any 
ditch for draining the water from any highway, shall for¬ 
feit for every such offense the sum of five dollars. 

Revised from 1 R. S., eh. 16, tit. 1, art . 5, § 102. 

See notes under next section. 

See § 153, post , as to damages for injuries to highways; § 164, post, as to 
recovery of penalties not specially provided for. 

The owner of land abutting upon a public street is permitted to en¬ 
croach on the primary right of the public to a limited extent and for a 
temporary purpose, owing to the necessity of the case. Two facts, how¬ 
ever, must exist to render the encroachment lawful; the obstruction 
must be reasonably necessary for the transaction of business; it must not 
unreasonably interfere with the rights of the public. ( Welch v. Wilson, 
101 N. Y. 254; Callanan v. Gilman, 107 N. Y. 360; Flynn v. Taylor, 127 
N. Y. 596.) 

As to what is a reasonable use of or encroachment upon a street. 

(Flynn v. Taylor, 127 N. Y. 596.) 

It seems to be the settled law that the long continuance of an encroach¬ 
ment, although for more than twenty years, cannot destroy the public 
right or take away the authority of the public officers to remove and abate 
it. ( Orphan Asylum v. City of Troy, 76 N. Y. 108; Walker v. Caywood, 
31 N. Y. 51; Mills v. Hall, 9 Wend. 315; Milhau v. Sharp, 27 N. Y. 611; 
Driggs v. Phillips, 103 N. Y. 77; Bliss v. Johnson, 94 N. Y. 235.) 

Contra, Peckham v. Anderson, 27 Barb. 207. 

An obstruction placed in a private road cannot be removed by the 
highway commissioners. ( Drake v. Rogers, 3 Hill, 604.) 

An owner of land has no right to obstruct a public highway because 
damages for taking the same had not been paid him. ( Chapman v. Gates, 
54 N. Y. 132.) 

Any permanent or habitual obstruction in a public highway is an in¬ 
dictable nuisance, although there be room enough left for carriages to 

pass, (j Davis v. Mayor, 14 N. Y. 524.) 

There is no provision in the statute which authorizes the commissioners 
of highways of two towns to unite as plaintiffs and bring an action to re¬ 
cover the penalty or forfeiture for an encroachment upon a highway. 
The authority of such officers to maintain actions is given by statute, and 




116 


The Highway Law of New York. 


Penalty for obstruction or encroachment. 


is confined to those of the town where the offense has been committed. 

( Bradley v. Blair, 17 Barb. 430.) 

It is not necessary under this section to give a defendant notice of the 
obstruction, specifying the extent and location thereof, and direct him to 
remove the same within sixty days, before an action can be brought to 
recover the penalty prescribed. ( Town of Corning v. Mead, 86 Hun, 12.) 

It is a good answer to a suit brought to recover the penalty prescribed 
by this section in justice’s court to plead title to the land and deny that 
the place is a highway. ( Little v. Denn, 34 N. Y. 452; Sage v. Barnes, 9 
Johns. 365; Fleet v. Youngs, 7 Wend. 291.) 

In an action for injuries resulting from the obstruction of a street, the 
question of defendant’s negligence is immaterial. ( Manger v. Harrison, 
14 W. D. 201.) 

Where an obstruction was placed in a ditch draining a highway by the 
owner of adjoining land who was being injured by the flow of water from 
the ditch, such injury was properly set up as a defence in an action for 
penalty under this section. ( Thompson v. Allen, 7 Lans. 459.) 

It is the duty of municipal authorities to keep the streets and sidewalks 
open and unobstructed. ( Railroad Co. v. Utica, 3 Alb. L. J. 151; Lavery 
v. Hannigan, 29 J . & S. 463.) 

As to whether municipal authorities may legalize the obstruction of a 
public highway. ( Railroad v. Utica, 3 Alb. L. J. 151; Lavery v. Hanni¬ 
gan, 20 J. & S. 463; Farrell v. New York, 22 St. Rep. 469; McCaffrey v. 
Smith, 41 Hun, 117; Hoey v. Gilroy , 129 N. Y. 132; People v. Fowler, 43 St. 
Rep. 415.) 

Village authorities have no right to authorize the using of a highway 
for a hack-stand without the consent of the adjoining owner. ( McCaffrey 
v. Smith, 41 Hun, 117.) 

Village trustees may authorize the erection of a work of art in a public 
highway. ( Tompkins v. Hodgson. 2 Hun, 146.) 

A common council of a city have no right to license a citizen to enclose 
a part of a public street, and such an inclosing is an encroachment. The 
only way that such a permission may be given is by statutory proceedings 
to alter or diminish the width of the street. ( Orphan Asylum v. City of 
Troy, 76 N. Y. 108.) 

An individual or municipal corporation who maintains an obstruction 
in a highway in the nature of an excavation is liable for any damage 
thereby sustained. ( Bliss v. Schaub, 48 Barb. 339; Dygert v. Schenck, 23 





The Highway Law of New York. 


117 


Obstructing sidewalks in cities and villages. 


Wend. 446; Johnson v. Friel, 50 N. Y. 679; McCamusv. Gaslight Co., 40 
Barb. 380; Osborne v. Union Ferry Co., 53 Barb. 629; Scott v. Hough, 14 
St. Rep. 401; Flynn v. Railroad Co., 17 J. & S. 60; Port Jervis v. National 
Bank, 90 N. Y. 550; Beard v. Karst, 32 St. Rep. 159; Clarke v. Crimmins, 
32 St. Rep. 978; Smith v. Town of Clarkstown, 69 Hun, 155; Greenberg v. 
Kingston, 22 Supp. 511; Beck v. Carter, 68 N. Y. 283.) 

The liability of one who placed a stone heap along a highway from 
which an accident resulted. (Houglitaling v. Shelley, 51 Hun, 598.) 

The liability of one who left steam boilers lying in the street. {Stewart 
v. Porter Mfg. Co., 13 St. Rep. 220.) 

The liability of one who obstructs a highway by placing logs thereon. 
{McDermott v. Conley, 33 St. Rep. 560.) 

The liability of one who built a toboggan slide across a city street. 
{Haden v. Clarke, 32 St. Rep. 478.) 

See People v. Horton, 64 N. Y. 610, as to what is not an obstruction of a 
canal by a floating elevator. 

See Trustees of Jordan v. Otis, 37 Barb. 50; Dygert v. Schenck, 23 
Wend. 446; Cooper v. Bean, 5 Lans. 318 ; Friedlander v. D. & H. C. Co., 
34 St. Rep. 650. 

Obstructing Sidewalks in Cities and Villages. 

A pedestrian may not stop in front of a person’s house and use abusive 
language towards such person; he becomes a trespasser thereby. {Adams 
v. Rivers, 11 Barb. 380.) 

As to the obstruction of a sidewalk by the use of skids or platforms 
leading to a wagon or by the vehicles themselves for the purpose of load¬ 
ing and unloading merchandise. {Hand v. Klinker, 7 St. Rep. 21; Fisher 
v. Cambridge, 51 Hun, 296; Flynn v. Taylor, 53 Hun, 167; Flynnv. Taylor, 
127 N. Y. 596; Callanan v. Gilman, 107 N. Y. 360; Richardson, &c. Co, 
v. Barstow Stove Co., 36 St. Rep. 983.) 

One who obstructs a sidewalk for his private ends and fails to restore it 
to a safe condition is liable for an injury sustained thereby. {Smith v. 
Ryan, 29 St. Rep. 672.) 

In an action for negligence for obstructing a sidewalk evidence as to 
the nature and appearance of such obstruction a few hours after the 
accident is admissible. {Ford v. Nichols, 36 St. Rep. 729.) 

As to the liability of one who tilted a heavy counter up against his 








118 


The Highway Law of New York. 


How removed and liability for not removing. 


house and allowed it to remain for several days when an accident occurred 
from its fall. ( King v. Troy, 21 W. D. 558.) 

Aivnings as obstructions. (Farrell v. New York, 20 St. Rep. 12; Hoey v. 
Gilroy, 41 St. Rep. 181; Lavery v. Hannigan, 20 J. & S. 463; Brinkman v. 
Eisler, 40 St. Rep. 865.) 

Basement entranees as obstructions. ( Williams v. Hynes, 23 J. & S' 
86 .) 

Coal holes as obstructions. (Jennings v. Van Schaick, 108 N. Y. 530; 
Wells v. Sibley, 31 St. Rep. 40.) 

Show cases as obstructions. (People v. Neiv York, 18 Abb. N. C. 123.) 

Storm doors as obstructions. (Kiernan v. Nexcton, 20 Abb. N. C. 398.) 

Signs as obstructions. (New York v. Wood, 15 Daly, 341.) 

§ 105. How removed and liability for not remov¬ 
ing *—The commissioners of highways shall serve upon 
the owner or occupant of lands adjoining that part of a 
highway within their town, in which any obstruction or 
encroachment may exist, a notice specifying the extent 
and location of such obstruction or encroachment, and 
directing such owner or occupant to remove the same 
within a specified time, not more than sixty days after 
the service of the notice. If such owner or occupant shall 
neglect or refuse to remove such obstruction or encroach¬ 
ment within such time, he shall forfeit to the town the 
sum of twenty-five dollars; and the commissioners may 
remove such obstructions or encroachments at the expense 
of the town, which may be recovered by action, of such 
owner or occupant; or the said commissioners may bring 
an action in any court of competent jurisdiction, to com¬ 
pel such owner or occupant to remove such obstruction or 
encroachment. Actions by commissioners of highways, 
as in this section provided, shall be in the name of the 
town. 

Revised from 1 R. S., ch. 16, tit. 1, art. 5, §§ 103-108, as amended by L. 
1840, ch. 300, and by L. 1878, ch. 245. 




The Highway Law of New York. 


119 


How removed and penalty for not removing. 


See § 15, ante, as to actions by commissioners for injuries to highways, 
and § 164, post, as to actions to recover penalties. 

See notes under § 104, ante. 

See notes under § 16, ante, as to liability of towns for defective 
highways. 

The scope of this provision of the highway law considered. ( Town of 

Weekfield v. Shasley, 23 Misc. 100.) 

The highways of the state are made for and devoted to public travel, 
and the whole public have the right to their use in their entirety, and 
when obstructions to public travel are found within their bounds, the 
commissioners of highways are clothed with power to remove them with¬ 
out waiting for the slow process of law, even though travel be not abso¬ 
lutely and entirely prevented. ( Van Wyek v. Lent, 33 Hun, 301; Cook v. 
Harris, 61 N. Y. 448; Wetmore v. Tracy, 14 Wend. 250; Hathaway v. 
Jenks, 67 Hun, 289.) 

Commissioners of highways have no remedy in equity, by mandamus or 
injunction, to remove encroachments from a highway. (. Rozell v. An¬ 
drews, 103 N. Y. 150.) 

The commissioners of highways may summarily remove from a high¬ 
way a building as an obstruction to public travel. ( Cook v. Harris , 61 N. 
Y. 448; Driggs v. Phillips, 103 N. Y. 77.) 

Obstructions in a ditch at the side of a highway may be summarily re¬ 
moved when they cause the overflowing of the road. ( Dominick v. Hill , 

6 St. Rep. 329.) 

The old statute referred only to the removal of encroaching fences. 
{Cook v. Covil, 18 Hun, 288.) It provided also for a trial by jury of the 
question of encroachment. {Commissioners v. Van Allen, 32 Hun, 61; 
Briggs v. Doughty, 7 Hun, 82; Bronson v. Mann, 13 Johns. 460; Mott v. 
Commissioners, 2 Hill, 472; Voorhees v. Martin, 12 Barb. 508; Robbins v. 
Gorham, 26 Barb. 586.) 

The commissioners should all meet and deliberate together on the sub¬ 
ject of the alleged encroachment; and then, if they, or a majority of 
them, should deem it necessary, they are to order the obstruction removed. 
{Spicer v. Slade, 9 Johns. 359; Bronson v. Mann, 13 Johns. 460.) 

Under the old statute any two commissioners might order the removal 
of an encroachment provided all were notified to be present at a meeting 
to consider such removal. {Phillips v. Schumacher, 10 Hun, 405; Fitch v. 




120 


The Highway Law op New York. 


How removed and penalty for not removing. 


Commissioners, 22 Wend. 132; Peoples. Williams, 36 N. Y. 441: Christy 
v. Newton, 60 Barb. 332.) 

The order of the commissioners of highways is not final and conclu¬ 
sive. ( Borries v. Horton, 16 Hun, 139.) 

Commissioners are not confined to the statutory remedy in removing 
encroachments, and may give a mere informal notice. ( Kline v. Hib¬ 
bard, 80 Hun, 50.) 

The purpose of the notice is to inform the one served of the particulars 
of the encroachment. ( Town of Sardinia v. Butler, 78 Hun, 527; Spicer 
v. Slade, 9 Johns. 359; Briggs v. Doughty, 7 Hun, 82; Fitch v. Commis¬ 
sioners, 22 Wend. 132.) 

Formerly it was necessary to state in the notice the breadth the high¬ 
way was originally intended to have. ( Cook v. Covil, 18 Hun, 288; Spicer 
v. Slade, 9 Johus. 359; Mott v. Commissioners, 2 Hill, 472.) 

As to what is a sufficient description of an encroachment, in order that 
the notice may comply with the statute. ( Town of Sardinia v. Butler, 
78 Hun, 527; Spicer v. Slade, 9 Johns. 359; Mott v. Commissioners, 2 Hill, 
472; Kerr v. Hammer, 39 St. Rep. 708.) 

Where an order complying with the statutory requirements is annexed 
to the notice, it supplements the notice and should be deemed a part 
thereof. Both need not contain a description of the encroachment- 
(James v. Sammis, 132 N. Y. 239; Olendorf v. Sullivan, 36 St. Rep. 74.) 

It is a question whether the sufficiency of the notice to remove an en¬ 
croachment can be attacked in an action against the highway commis¬ 
sioners for trespass. (Hathaway v. Jenks, 67 Hun, 289.) 

Notice must be given independent of whether the road was established 
by alteration or originally laid out by the commissioners. (Case v. Thomp¬ 
son, 6 Wend. 634.) 

Actual notice must be shown. It will not be presumed. (Case v. Thompt- 
son, 6 Wend. 634 ) 

It is not necessary that one who has been ordered to remove an encroach¬ 
ment deny the existence of such to the commissioners. (Borries v. Hor¬ 
ton, 16 Hun, 139.) 

But see Lane v. Cary, 19 Barb. 537. 

An action of trespass will not lie against a highway commissioner for 
removing an encroachment after notice. (Hathaway v. Jenks, 67 Hun, 
289.) 

An owner of a house who has been ordered to remove it as an obstruc- 






The Highway Law of New York. 


121 


How removed and penalty for not removing. 


tion to a public highway, may, upon proof that it does not encroach, 
maintain an action to restrain interference therewith. ( Flood v. Van 
Wormer, 147 N. Y. 284.) 

Where a fence has been properly found to be an encroachment upon the 
highway, an injunction will not lie to restrain its removal. ( Hyatt v. 
Bates, 40 N. Y. 164.) 

Where a highway commissioner has ordered a building to be removed 
as an encroachment, an injunction may issue against him. ( Flood v. Van 
Wormer , 70 Hun, 415.) 

The penalty for encroachment should be recovered by suit and not by a 
summary proceeding. ( Rue v. Sprague, 1 Johns. 510.) 

Commissioners of highways cannot maintain a suit in their official 
names or titles; but must use their individual names, annexing their offi¬ 
cial titles. {Supervisor of Galway v. Stimson, 4 Hill, 136; Commissioners 
v. Peck, 5 Hill, 215; Overseers v. Overseers , 18 Johns. 407; Todd v. Birdsall, 
1 Cow. 260; Gould v. Glass , 19 Barb. 179.) 

But when actions are thus brought, the pleading should, by proper aver¬ 
ments, show that the claim is made by the officer, and not by the indi¬ 
vidual. {Gould v. Glass, 19 Barb. 179.) 

The highway commissioners of two towns cannot sue jointly for a pen¬ 
alty for an encroachment upon a highway which forms the boundary 
between the towns. {Bradley v. Blair, 17 Barb. 4S0. 

Commissioners of highways are authorized to prosecute for the recovery 
of penalties for encroachments on highways; and are, of course, competent 
to adjust controversies in relation to such encroachments by amicable 
settlement. If, in so doing, they deem it advisable, in the exercise of a 
sound discretion, to take security for the payment of money at a further 
day, there can be no reasonable objection to such an arrangement. {Com¬ 
missioners v. Peck, 5 Hill. 215.) 

Special damages must be alleged and proven in an action for obstruct¬ 
ing a public highway. {La7ising v. Wiswall, 5 Den. 213.) 

Commissioners may employ counsel in their legal proceedings. {Duntz 
v. Duntz, 44 Barb. 459.) 

As to whether the defendant in an action for the penalty for obstruct¬ 
ing a highway may interpose a plea of title. {Sage v. Barnes, 9 Johns. 
385: Parker v. Van ITouten, 7 Wbnd. 145; Fleet v. \oungs, 7 Wend. 291; 
Saunders v. Townsend, 26 Hun, 308.) 

As to whether an appeal will lie to the county court in proceedings by 




122 


The Highway Law of New York. 


How removed and penalty for not removing. 


commissioners to remove encroachments. ( Commissioners v. Van Allen, 
32 Hun, 61.) 

The proceeding herein provided for the removal of encroachments is 
applicable to all highways, including a highway by user; and the remedy 
is available although it did not exist at the time of the encroachment. 
{James v. Sammis, 132 N. Y. 239; Town of Sardinia v. Butler , 78 Hun, 
527; Town of Corning v. Head, 86 Hun, 12; People v. Hunting ,39 Hun, 
452; Alpaugh v. Bennett, 59 Hun, 45; Baylis v. Roe, 5 Supp. 279; Fowler 
v. Mott, 19 Barb. 204.) 

Contra: Doughty v. Brill, 36 Barb. 488; Christy v. Newton, 60 Barb. 
332. 

An obstruction placed in a private road cannot be removed by the 
highway commissioners. ( Drake v. Rogers, 3 Hill, 604.) 

Although a plank road has been located thereon, yet the local authori¬ 
ties still have jurisdiction to remove obstructions from a highway. 
(Walker v. Caywood, 31 N. Y. 51.) 

A highway used by the public for many years and thereafter used as a 
plank road was held to be a public highway only to the extent of its 
public use, and a structure not upon the land actually so used was not an 
encroachment. ( Flood v. Van Wormer, 70 Hun, 415.) 

The penalty for encroachment cannot be recovered unless the high¬ 
way has been properly described and bounded as required by law; 
whether or not this has been done is a question not for the jury but for 
the commissioners of highways. ( Talmage v. Huntting, 29 N. Y. 447.) 

Commissioners may not remove a fence as an encroachment unless the 
road has been properly laid out and recorded under the highway law. 
{Marvin v. Pardee, 64 Barb. 353.) 

Where a road was closed by resolution of municipal authorities, no 
action could lie to recover a penalty for encroachment. {Bisbee v. Mans¬ 
field, 6 Johns. 84.) 

An order of a highway commissioner directing the removal of a build¬ 
ing encroaching upon a highway, being recorded in the office of the 
town clerk is a cloud upon the title of the owner of such building and the 
land on which it stands. {Flood v. Van Wormer, 70 Hun, 415.) 

Shade trees lawfully planted by the owner of the fee in the highway 
dedicated by him to the public and which did not encroach upon that part 
of the highway used by the public for thirty years, are not an encroach¬ 
ment under this section and may not be removed in an action brought by 





The Highway Law of New York. 


123 


How removed and penalty for not removing. 


the highway commissioners. ( Town of Weekfield v. Shasley, 23 Misc, 

100 .) 

Where the owner of the fee in a public highway builds a race-way 
across the road, he must restore the road to proper condition or be liable 
in damages for any injury sustained thereby. (. Dygert v. Schenck, 28 
Wend. 451.) 

Where a plank road corporation has taken a public highway it succeeds 
to the rights and duties of the town commissioners of highways; although, 
therefore, in making proper and reasonable repairs, a citizen may suffer 
expense or inconvenience, the corporation is not liable in damages. 
(.Benedict v. Goit, 3 Barb. 459; Graves v. Otis, 2 Hill, 466.) 

Overseers may not remove fences without an order from the commis- 
sioner and without the sixty days’ notice, even if the road be already laid 
out. {Kelley v. Horton and Smith, 2 Cow. 424; contra, McFadden v. Kings¬ 
bury, 11 Wend. 667.) 

The remedy here given for the removal of encroachments does not abro¬ 
gate the common law remedy of abatement of nuisances by individuals or 
abolish the proceeding by indictment. {Wetmore v. Tracy, 14 Wend. 
250.) But a private individual cannot remove an encroachment unless it 
interferes with the use of the road by the public. {Harrower v. Ritson , 
37 Barb. 301.) 

An obstruction of a highway is a public nuisance and the individual 
who has sustained a private injury therefrom may maintain an action to 
abate it and recover special damages. (Wakeman v. Wilbur, 147 N. Y. 

657.) 

A land owner may remove an obstruction from a highway where it 
amounts to a nuisance. {Griffith v. McCullum, 46 Barb. 561; Jennings v. 
Bates, 26 W. D. 33.) 

An abutting owner will be granted an injunction to prevent the 
obstruction of a highway. {Newman v. Nellis, 97 N. Y. 285; Purroy v. 
Schuyler , 15 St. Rep. 337.) 

An owner of land may remove shade trees in front of his premises. 

{Lancaster v. Richardson, 4 Lans. 156.) 

As to whom the timber, obtained from cutting trees standing on the 

street, belongs. {Bridge Co. v. Bachman, 66 N. Y. 261.) 

The trustees of a village may, as highway commissioners, order the 
removal of a sidewalk which encroaches upon the highway. {Moore v, 
Village of Fairport, 11 Misc. 146.) 




124 


The Highway Law of New York. 


Private road. 


Who may remove obstructions in the city of New York. ( Metropolitan 
Exhibition Co. v. Newton, 21 St. Rep. 73; Naylo v. Glazier, 5 Duer, 161.) 

Power of trustees of village of Fairport to order obstructions to side¬ 
walks and streets removed. (Moore v. Fairport, 11 Misc. 146.) 

See Fleet v. Youngs, 7 Wend. 291; Pugsley v. Anderson, 3 Wend. 468; 
James v. Sammis, 31 St. Rep. 192; Freidlander v. D. & H. C. Co. } 34 St. 
Rep. 650; People v. Hunting, 39 Hun, 452; Sage v. Barnes, 9 Johns. 365; 
Strickland v. Woodworth, 3 S. C. 286; Etzv. Daily, 20 Barb. 32; Railroad 
Co. v. Railroad Co., 67 Barb. 315; Coykendall v. Durkee, 13 Hun, 260; 
Paine v. East, 15 W. D. 281; New York v. Heuft , 2 How. Pr. (N. S.) 149; 
Ketchum v. Edwards, 6 App. Div. 160. 


§ 106. Private road .—An application for a private 
road shall be made in writing to the commissioners of 
highways of the town in which it is to be located, specify¬ 
ing its width and location, courses and distances, and 
the names of the owners and occupants of the 'land 
through which it is proposed* be laid out. 

*(R. S. pp. 1379, 1383; post, pp. 882-893.) 

Revised from 1 R. S., ch. 16, tit. 1, art. 4, § 77, and from L. 1853, ch. 
174, § 1. 

See Constitution, Art. 1, § 7, Appendix, post, as to opening private 
roads. 

In the light of the Constitution, if not that of a law which lies at the 
foundation of all governments, this statute must be read with the proviso 
that the owner consent. 

Such consent need not be in writing but may be oral. The bringing of 
an action for the damages assessed is the clearest manifestation of con¬ 
sent. ( Baker v. Braman, 6 Hill, 47; Taylor v. Porter, 4 Hill, 140.) 

As to what evidence would show a road to be a private and not a public 
highway. (Drake v. Rogers, 3 Hill, 604.) 

As to what the application should contain. (Peopte v. Taylor, 34 Barb. 
481.) 

As to the sufficiency of the description of the proposed private road, 


* So in the original. 





The Highway Law of New York. 


125 


Jury to determine necessity, &c. 


where it refers to an old road or a private way used-for a number of 
years but never legally laid out. ( Satterly v. Winne, 101 N. Y. 218.) 

A private road cannot be laid out across the inclined plane of a railroad. 
(Railroad Co. v. Artcher, 6 Paige, 83.) 

An obstruction placed in a private road by the owner of the land over 
which it is laid out, cannot be lawfully removed by one having no right 
to use the road. ( Drake v. Rogers , 3 Hill, 604.) 

See O'Rourke v. Hart , 9 Bos. 301. 

§ 107. Jury to determine necessity and assess dam- 
ayes. —One or more of the commissioners to whom the 
application shall be made, shall appoint as early a day as 
the convenience of the parties interested will allow, when, 
at a place designated in the town, a jury will be selected 
for the purpose of determining upon the necessity of such 
road, and to assess the damages by reason of the opening 
thereof. 

Revised from L. 1853, eh. 174, § 2. 


§ 108. Copy application and notice delivered to 
applicant. —Such commissioners shall deliver to the 
applicant a copy of the application to which shall be 
added a notice of the time and place appointed for the 
selection of the jury, addressed to the owners and occu¬ 
pants of the land. 

Revised from L. 1853, ch. 174, §3. 


§ 109. Copy and notice to be served. —The applicant 
on receiving the copy and notice shall, on the same day, 
or the next day’thereafter, excluding Sunday and holidays, 
cause such copy and notice to be served upon the persons 
to whom it is addressed, by delivering to each of them 
who reside in the same town a copy thereof, or in case of 
his absence, by^leaving the same at his residence, and 




126 


The Highway Law of New York. 


List of jurors. 


upon such as reside elsewhere, by depositing in the post- 
office a copy thereof to each, properly inclosed in an 
envelope, addressed to them respectively at their post- 
office address, and paying the postage thereon, or, in case 
of infant owners, by like service upon their parent or 
guardian. 

Revised from L. 1853, ch. 174, § 4. 

The land-owner must be served with a written notice; but he may waive 
it by appearing. (Railroad Co. v. Artcher, 6 Paige, 83.) 

§ 110. List of jurors. —At such time and place, on 
due proof of the service of the notice, one or more of the 
commissioners shall present a list of the names of eighteen 
resident freeholders of the town, in no wise of kin to the 
applicant, owner or occupant, or either of them, and not 
interested in such lands. 

Revised from L. 1853, ch. 174, § 5, as amended by L. 1859, ch , 373, and L. 
1860, ch. 468. 

7 i 

§ 111. Names struclz off. —The owners or occupants 
of the land, may strike from the list not more than six 
names, and the applicant a like number; and of the num¬ 
ber which remain, the six names standing first upon the 
list shall be the jury. 

Revised from L. 1853, ch. 174, § 6. 

§ 112. Place of meeting. — The commissioner or 
commissioners present, shall then appoint some conven¬ 
ient time and place for the jury to meet, and shall sum¬ 
mon them accordingly. 

Revised from L. 1853, ch. 174, § 7. 

The commissioners have no right to delegate the summoning of the 
jurors, but such summons will not be held invalid if the owner of the land 




The Highway Law of New York. 


127 


Jury to determine and assess damages. 


proposed to be taken is present at the meeting of the jury and does not 
object to the proceeding, ( People v. Commissioners of Greenbush, 24 
Wend. 367.) 


§ 113. Jury to determine and assess damages .—At 
least one commissioner and all the persons named and 
summoned on such jury, shall meet at the time and place 
appointed; but if one or more of the six jurors shall not 
appear, the commissioner or commissioners present shall 
summon so many qualified to serve as such jurors as 
will be sufficient to make the number present six, to forth¬ 
with appear and act as such; and when six shall have so 
appeared, they shall constitute the jury, and shall be 
sworn well and truly to determine as to the necessity of 
the road, and to assess the damages by reason of the open¬ 
ing thereof. 

Revised from L. 1853, ch. 174, 8, 9. 

It is necessary to take an objection to any of the jurors that they are 
not freeholders or they will be deemed to be such. ( People v. Taylor , 34 
Barb. 4S1.) 


§ 114. Their verdict .—The jury shall view the prem¬ 
ises, hear the allegations of the parties, and such wit¬ 
nesses as they may produce, and if they shall determine 
that the proposed road is necessary, they shall assess the 
damages to the person or persons through whose land it is 
to pass, and deliver their verdict in writing to the com¬ 
missioners. 

Revised from L. 1853, ch. 174, § 10, and from 1 R. S., ch. 16, tit. 1, art. 
4, § 78. 

As to what is sufficient evidence in the record of the breadth of the 
road. ( Herrick v. Stover , 5 Wend. 580.) 

An assessment of damages on the laying out a private road is not subject 





128 


The Highway Law of New York. 


Value of highway discontinued. 


to the revision or correction of a board of supervisors. ( Craig v. Super¬ 
visors, 10 Wend. 585.) 

See Peoples. Commissioners, 24 Wend. 367; Taylor v. Porter , 4 Hill, 
142. 


§ 115. Value of highway discontinued, —If the ne¬ 
cessity of such private road has been occasioned by the 
alteration or discontinuance of a public highway running 
through the lands belonging to a person through whose 
lands the private road is proposed to be opened, the jury 
shall take into consideration the value of the highway so 
discontinued, and the benefit resulting to the person by 
reason of such discontinuance, and shall deduct the same 
from the damages assessed for the opening and laying out 
of such private road. 

Revised from L. 1853, eh. 174, § 11. 


§ 116. Papers to be recorded in the town cleric’s 
office. —The commissioners shall annex to such verdict the 
application, and their certificate that the road is laid out, 
and the same shall be filed and recorded in the town clerk’s 
office. 

Revised from L. 1853, eh. 174, § 12. 

The order of the commissioners laying out the highway after the 
decision of the jury, is sufficient if it refers to the description of the road 
contained in the application. ( Satterly v. Winne, 101 N. Y. 218.) 

See People v. Robinson, 29 Barb. 80. 


§ 117. Damages to be paid before opening the road, 
—The damages assessed by the jury shall be paid by the 
party for whose benefit the road is laid out, before the 
road is opened or used; but if the jury shall certify that 
the necessity of such private road was occasioned by the 




129 




The Highway Law of New York. 


Fees of officers. 


alteration or discontinuance of a public highway, such 
damages shall be paid by the town, and refunded to the 
applicant. 

Revised f rom L. 1853, ch. 174, § 14. 

§ 118. Fees of officers .—Every juror, in proceedings 
for a private road, shall be entitled to receive for his ser¬ 
vices one dollar and fifty cents; and commissioners, of 
highways, their per diem compensation, to be paid by 
the applicant. 

Revised from L. 1880, ch. 114, § 4. 

§ 119. Motion to confirm, vacate or modify .— Within 
thirty days after the decision of the jury shall have been 
filed in the town clerk's office, the owner or occupant may 
apply to the county court of the county wherein such pri¬ 
vate road is situated, for an order confirming, vacating or 
modifying their decision; and such court may confirm, 
vacate or modify such decision as,it shall deem just and 
legal. If the decision is vacated, the court may order 
another hearing of the matter before another jury, and 
remit the proceeding to the commissioners of highways of 
the same town for that purpose. If no such motion is 
made, the decision of the jury shall be deemed final. The 
motion shall be brought on, upon the service of papers on 
the adverse party in the proceeding, according to the 
usual practice of the court in actions and special proceed¬ 
ings pending therein, and the decision of the county court 
shall be final, except that a new hearing may be had, as 
herein provided. If the final decision shall be adverse to 
the applicant, no other application for the same road shall 
be made within two years. 

Revised from L. 1853, ch. 174, § 5, as amended by L. 1859, ch. 373, and 
L. 1860, ch. 468. 

9 




130 


Tile Highway Law of New Yoek. 


Costs of new hearing. 


An order of the county court, affirming the decision of the jury, is not 
appealable. ( Matter of DeCamp, 77 Hun, 478.) 

Formerly no appeal would lie to the county judge from the decision of 
the jury. ( People v. Robinson, 29 Barb. 77.) But otherwise under the 
act of 1860. (West v. McGurn, 43 Barb. 198.) 

See Craig v. Supervisors, 10 Wend. 585. 

§ 120. Costs of new hearing ,—If upon a new hearing, 
the damages assessed are increased, the applicant shall 
pay the costs and expenses thereof, otherwise the owner 
shall pay the same. 

New. 

§ 121. Tor what purpose pr ivate road to be used .— 
Every such private road when so laid out, shall be for the 
use of such applicant, his heirs and assigns; but not to be 
converted to any other use or purpose than that of a road; 
nor shall the occupant or owner of the land through which 
said road shall be laid out, be permitted to use the same 
as a road, unless he shall have signified such intention to 
the jury who assessed the damages for laying out such 
road, and before such damages w T ere assessed. 

Revised from 1 R. S., ch. 16, tit. 1, art. 4, § 79. 

According to the true construction of the statute, a person on whose 
application a private road is laid out, has the sole and exclusive right to 
use it, unless the occupant of the land at the time when it is laid out 
signify his intention to made use of it. (Lambert v. Hoke, 14 Johns. 384.) 

The penalty provided by statute for obstructing a highway is not appli¬ 
cable to a private road. (Fowler v. Lansing, 9 Johns. 349.) 

As to the use of private roads laid out upon its own land by a corpora¬ 
tion for its employees. (People v. Moore , 50 Hun, 356.) 

The original owner of the land should so locate his fences as not to 
encroach upon the width of the road; but the new owner shall be deemed 
to have assented to such encroachment if he allows such fences to be so 
located without objection. (Herrick v. Stover, 5 Wend. 580.) 





The Highway Law of New York. 


131 


Highways or roads along division lines. 


An obstruction placed in a private road by the owner of the land over 
which it is laid out, cannot be lawfully removed by one having no right 
to use the road. [Drake v. Rogers, 3 Hill, 604.) 

See Taylor v. Porter, 4 Hill, 142. 

§ 122. Highways or roads along division lines .— 
Whenever a highway or private road shall be laid along 
the division line between, lands of two or more persons, 
and wholly upon one side of the line, and the land upon 
both sides is cultivated or improved, the persons owning 
or occupying the lands adjoining such highway or road, 
shall be paid for building and maintaining such addi¬ 
tional fence as they may be required to build or maintain, 
by reason of the laying out and opening such highway or 
road; which damages shall be ascertained and determined 
in the same manner that other damages are ascertained 
and determined in the laying out of highways or private 
roads. 

Revised from L. 1853, eh. 174, § 16. 


§ 123. Adjournments .—If any accident shall prevent 
any of the proceedings required by this chapter relating to 
the laying out, altering or discontinuing of a highway, 
or the laying out a private road, to be done on the day 
assigned, the proceedings may be adjourned to some other 
dav, and the commissioner shall publicly announce such 
adjournment. 

Revised from L. 1853, eh. 174, § 13. 





t 


132 The Highway Law of New York. 


Bridges. 


ARTICLE V. 

Bridges. 

Section 130. When town or county expense. 

131. Additional county aid. 

132. Statement of expenses. 

133. Supervisors to levy tax. 

134. Joint liabilities of towns, and their joint contracts. 

135. Refusal to repair. 

136. Proceedings in court. 

137. Commissioners to institute proceedings. 

138. Their duty. 

139. Commissioners to report. 

140. Appeals. 

141. Power of court on appeal. 

142. Refusal to repair bridge. 

143. Penalty, and'notice on bridge. 

144. Offense. 

145. Iron bridges. 

Section 130. When town or county expense .—The 
towns of this state, except as otherwise herein provided, 
shall be liable to pay the expenses for the construction 
and repair of its public free bridges constructed over 
streams or other waters within their bounds, and their 
just and equitable share of such expenses when so con¬ 
structed over streams or other waters upon their bound¬ 
aries, except between the counties of Westchester and New 
York; and when such bridges are constructed over streams 
or other waters forming the boundary line of towns, either 
in the same or adjoining counties, such towns shall be 
jointly liable to pay such expenses. Each of the counties 
of this state shall also be liable to pay for the construe- 




The Highway Law of New Yoke. 


133 


When town or county expense. 


tion, care, maintenance, preservation and repair of pub¬ 
lic bridges, lawfully constructed over streams or other 
waters forming its boundary line, not less than one-sixth 
part of the expenses of such construction, care, mainte¬ 
nance, preservation and repair. 

Revised from L. 1883, ch. 346. Amended by L. 1895, ch. 416. 

See Constitution, art. 3, § 18, Appendix, post; § 145, post, as to iron 
bridges; County Law, § 60 ff. Appendix, post, as to liability of county; 
§ 16, ante, as to liability of town in the matter of bridges; Canal Law, §§ 
113-118, 176, Appendix, post, as to canal bridges; Transportation Corpor¬ 
ations Law, §§ 120-151, Appendix, post , as to construction of bridges by 
corporations; Village Law, § 142, Appendix, post, as to care of bridges by 
village; L. 1897, ch. 269, Appendix, post, as to construction of bridges over 
waters between cities, towns or villages; see also L. 1893, ch. 419, Appen¬ 
dix, post. 

In the absence of any other valid provision for the erection of a bridge, 
the commissioners of highways are charged with the power and duty to 
erect it. (. Berlin Iron Co. v. Wagner, 157 Hun, 346.) 

Commissioners of highways are not obliged to build bridges when they 
have no money in their hands for such purpose. (. People v. Hudson, 7 
Wend, 474; Garlinghouse v. Jacobs, 29 N. Y. 297; Smith v. Wright, 27 
Barb. 621.) 

The power given to a highway commissioner to repair highways in¬ 
cludes the power to build a bridge to connect two parts of a highway. 

(Mather v. Crawford, 36 Barb. 564; Huggans v. Riley , 125 N. Y. 88.) 

As to the power of highway commissioners to build a new bridge, 
where the old one has been destroyed, without waiting for action by the 
people at a town meeting. ( Boots v. Washburn, 79 N. Y. 207; Buyce v, 
Buyce, 48 Hun, 433.) 

Where a bridge had not been destroyed but was deemed insufficient by 
the highway commissioner, he was held to have no power even with the 
consent of the town board to erect a new one. {Bridge Co. v. Barnett, 1 
St. Rep. 600; s. c., 12 St. Rep. 194.) 

After a town board has given its consent to the erection or repair of a 
bridge, its powers and duties in relation thereto are at an end, and it may 
not give directions to the highway commissioners as to the manner of 
construction. {People v. Town Board, 92 Hun, 585.) 






134 


The Highway Law of New York. 


When town or county expense. 


Where the town has authorized the construction of a bridge, any one 
highway commissioner may proceed to contract for its erection. (. Berlin 
Bridge Co. v. Wagner, 57 Hun, 346.) 

Where a town board by resolution authorizes a highway commissioner 
to repair bridges broken down since last town meeting, he may erect an 
iron bridge if he deems it best. {People v. Smith, 83 Hun, 432.) 

Where an act required the highway commissioners to build a bridge “upon 
or near the site” of an old one, they had no power to change the location 
of the highway. {People v. Finger, 24 Barb. 341.) 

It will not render the erection of a bridge illegal that when determined 
upon there was no highway leading to its site. {People v. Meach, 14 Abb. 
[N. S]. 429.) 

As to the power of the supervisors to build bridges under the act of 
1869. {People v. Meach, 14 Abb. [N. S.] 429; Huggans v. Riley, 125 N. Y. 
88 .) 

Prior to the act of 1890 the burden of supporting the bridges within the 
towns was cast upon the towns alone. The counties could not be com¬ 
pelled to contribute toward such support. {Town of W^irt v. Supervisors, 
90 Hun, 205.) 

Before the repealing act of 1895 the towns could compel the counties to 
contribute in certain cases toward the expense of constructing and repair¬ 
ing bridges. After such repeal, however, such right was lost even though 
it had accrued priorjto the passing of the repealing act. {Town of Wirt 
v. Supervisors, 90 Hun, 205; but see Thacher v. Supervisors, 21 Misc. 271.) 

The board of supervisors of a county having within it two towns sep¬ 
arated by a stream, may, upon the proper application of one of such towns, 
enact a law authorizing and compelling the erection of a bridge over said 
stream to connect highways in said towns, and impose taxes upon said 
towns to pay the expense thereof, though a majority of the taxpayers of 
one of such town and its officers are opposed to it, however such opposi- 
sition may be indicated. {People v. Supervisors, 51 N. Y. 401; People v. 
Flagg, 46 N. Y. 401; People v. McDonald, 69 N. Y. 32; Town of Kirk¬ 
wood v. Newbury, 122 N. Y. 571.) 

Duty of counties under this section may be enforced by mandamus. 
{People v. Supervisors, 142 N. Y. 271.) 

As to the power of the supervisors, under the County Law, to permit a 
town to issue bonds for the construction of a bridge. {Barker v. Oswe - 






The Highway Law of New York. 


135 


Additional county aid. 


gatchie, 10 Supp. 834; 16 Supp. 727; Berlin Bridge Co. v. Wagner, 57 Hun, 
346; County Law, § 12, subs. 6, 13, 14.) 

A county is not liable at the suit of a private individual for personal 
injuries received from a defective bridge, though the county is charge¬ 
able with the maintenance thereof. (Markey v. County of Queens , 154 N. 
Y. 675; Ensign v. Supervisors, 25 Hun, 20.) 

Bridges erected within the Indian reservation need' not be repaired by 
the highway commissioner. ( Bishop v. Barton, 64 N. Y. 637.) 

When the approach to a bridge has been destroyed for over twenty- 
four years, the court will presume the highway thereover to have been 
abandoned and will not require the bridge to be rebuilt. ( Matter of Free¬ 
holders of Owasco, 46 Hun, 620.) 

L. 1892, ch. 493, not unconstitutional. ( Treanor v. Eiclihorn, 74 Hun, 
58.) 

See People ex rel. Root v. Supervisors, 146 N. Y. 107, 81 Hun, 216, con¬ 
struing the above section before its amendment in 1895. 

See also Town of Salamanca v. Cattaraugus Co., 81 Hun, 282; People 
ex rel. Keene v. Supervisors, 142 N. Y. 271; Dygert v. Schenck, 23 Wend. 
446. 


§ 131. Additional county aid .—When it shall appear 
to the board of supervisors of any county that any one of 
the towns in their county will be unreaonably burdened 
by erecting or repairing any necessary free bridges in 
such town or upon its borders, such board of supervisors 
may cause such sum of money, not exceeding two thou¬ 
sand dollars in any one year, in addition to the amounts 
provided for in the last preceding section, to be raised and 
levied upon the county to be used to pay such portion of 
the expenses of erecting or repairing such bridge as such 
board may deem proper. 

Repealed by County Laic, L. 1892, ch. 686. 

Section 63 of the County Law was evidently intended to be a substitute 
for the above section. It provides as follows: 

g G3. County aid to towns for the construction and repair of 
bridges.— If the board of supervisors of any county shall deem any town 
in the county to be unreasonably burdened by its .expenses for the con- 





136 


The Highway Law of New York. 


Statement of expenses. 


stmction and repair of its bridges, the board may cause a sum of money, 
not exceeding two thousand dollars in any one year, to be raised by the 
county and paid to such town to aid in defraying such expenses. 

See People v. Supervisors , 1 Hill, 50. 


§ 132. Statement of expenses. —The commissioners of 
highways of every town in which the whole or any part 
of any free bridge may be, shall make and deliver to 
the supervisor of the town, on or before the first day of 
November in each year, a written statement, verified by 
one of them, containing a description of such bridge, the 
whole expense in items incurred by the town during the 
year preceding for its construction or repair. 

Revised from L. 1883, ch. 346. 

See notes under § 130, ante. 


§ 133. Supervisors to levy tax .—Every supervisor to 
whom such statement is delivered shall present the same 
to the board of supervisors of his county at its next annual 
session thereafter, and the board of supervisors shall levy 
upon the taxable property of the county a sum sufficient 
to pay its proportion of such expense, and the same when 
collected shall be paid to the commissioners of highways 
of such town to be applied toward the payment of such 
expense. 

Revised from L. 1883, ch. 346. 

See notes under § 130, ante. 

§ 134. Joint liabilities of toivns, and their joint con¬ 
tracts. —Whenever any two or more towns shall be liable 
to make or maintain any bridge or bridges, the same shall 
be built and maintained at the joint expense of such 
towns, without reference to town lines. The commis¬ 
sioners of highways of all the towns, or of one or more 




The Highway Law of New York. 


137 


Joint liabilities of towns, and their joint contracts. 


of such towns, the others refusing to act, may enter into 
a joint contract for making and repairing such bridges. 

Revised from L. 1841, eh. 225, as amended by L. 1857, eh. 383. 

See notes under § 16, ante , as to the joint liability of towns and high¬ 
way commissioners for defective and unsafe bridges. 

The duty of the commissioner of highways to divide a town into road 
districts for the purpose of keeping the highways in repair, does not 
include the duty to repair bridges. Such latter duty is separately 
imposed by this and the following sections. {Day v. Day, 94 N. Y. 153.) 

The duty to keep and maintain bridges is a joint one imposed by the 
legislature. {Oakley v. Town of Mamaroneck, 39 Hun, 448.) 

The liability of commissioners of highways under a bridge contract is a 
joint one. {Corey v. Rice, 4 Lans. 141.) 

This section is made to include all towns in which any part of the 
bridge is located. {Lapham v. Rice, 55 N. Y. 472.) 

The expense of maintenance is to be borne equally by the towns liable 
without regard to the portion of the bridge located in either. ( Lapham 
v. Rice, 55 N. Y. 472.) 

Where a bridge has been constructed under a joint contract by the 
commissioners of several towns and been accepted, the liability of the 
towns is not only joint but several. {Harris v. Houck, 57 Barb. 619.) 

The liability of adjoining towns to make and maintain bridges cannot 
be changed by a submission of the case to arbitration. {Corey v. Rice, 4 
Lans. 141.) 

As to whether one of two towns can relieve the other from responsibility 
for the care of a bridge for which they are jointly liable. {Getty v. 
Hamlin, 46 Hun, 1.) 

Where three towns were liable for the repairing of a bridge and one of 
them paid one-half the expense, it could not recover back the excess so 
paid. {Flynn v. Hurd, 118 N. Y. 19.) 

As to approval by town of informal contract by commissioners. {Ed¬ 
wards v. Ford, 22 App. Div. 277.) 

Where two towns are liable to maintain a bridge they are also liable to 
maintain the approaches thereto. {Edwards v. Ford, 22 App. Div. 2/ / .) 

Where a county by special act is required to maintain a bridge between 
adjoining towns, no act of their highway commissioneis could bind such 
towns for repairs to the bridge. {Phelps v. Hawley, 52 N. Y. 23.) 

A highway legally laid out will be presumed to be continued so as to make 




138 


The Highway Law of New York. 


Refusal to repair. 


two towns separated by a stream, jointly liable for the erection of a 
bridge in the line of the highway. An abandonment is not shown by the 
fact that part of the road has not been worked for six years, but one 
town may show that the approach to the bridge on its side has never been 
opened. (. Beckwith v. Whalen, 65 N. Y. 332; reversed in 70 N. Y. 432.) 

See Surdam v. Fuller, 31 Hun, 500; Matter of Freeholders of Monte¬ 
zuma, 38 St. Rep. 970; Clapp v. Town of Ellington, 87 Hun, 542. 

§ 135. JRefusal to repair .—If the commissioners of 
highways of either of such towns, after notice in writing 
from the commissioners of highways of any other of such 
towns, shall not within twenty days give their consent in 
writing to build or repair any such bridge, and shall not 
within a reasonable time thereafter do the same, the com¬ 
missioners of highways giving such notice may make or 
repair such bridge, and then maintain an action in the 
name of the town, against the town whose commissioners 
neglect or refuse to join in such making or repairing, 
and in such action, the plaintiffs shall be entitled to re¬ 
cover so much from the defendant, as the town would be 
liable to contribute to the same, together with costs and 
interest. 

Revised from L. 1841, ch. 225, as amended by L. 1857, ch. 383. 

See § 142, post, as to refusal to repair bridge; see notes under §§ 16, 17, 
ante. 

It is essential to the maintenance of an action as herein prescribed that 
the statutory notice be given. {Flynn v. Hurd, 118 N. Y. 19.) 

An absolute refusal by the commissioner of one town to assist in the 
repair of a bridge amounts to a waiver of the twenty days’ notice required 
by this section. ( Day v. Day, 94 N. Y. 153; Clapp v. Town of Ellington, 
87 Hun, 542.) 

An action will lie under this section where the commissioners of one of 
several liable towns, though having met with the other commissioners 
and agreed to join in the repair, yet have neglected to pay their share of 
the expense. ( Surdam v. Fidler, 31 Hun, 500.) 

An allegation in the complaint that the defendant towns had money 







The Highway Law of New Yoke. 


139 


Proceedings in court. 


with which to do the duty imposed upon them by law is not necessary to 
the complaint. (Oakley v. Town of Mamaroneck, 39 Hun, 448.) 

If two of three commissioners have paid the indebtedness of a third, 
they must sue separately for the portions paid by them respectively; 
where the action is joint by the two to recover the whole amount paid for 
the third, and the complaint does not show otherwise, the presumption is 
in favor of a payment from joint funds. (Corey v. Rice , 4 Lans. 141.) 

See Harris v. Houck, 57 Barb. 619; Phelps v. Haivley, 3 Lans. 160; Hawx* 
hurst v. Mayor, 43 Hun, 588. 

§ 136. Proceedings in court *—Whenever any adjoin¬ 
ing towns shall be liable to make or maintain any bridge 
over any streams dividing such towns, whether in the 
same or different counties, three freeholders in either of 
such towns may, by petition signed by them, apply to 
the commissioners of highways in each of such towns, to 
build, rebuild or repair such bridge, and if such com¬ 
missioners refuse to build, rebuild or repair such bridge 
within a reasonable time, either for want of funds or 
any other cause, such freeholders, upon affidavit and 
notice of motion, a copy of which shall be served on each 
of the commissioners, at least eight days before the hear¬ 
ing, may apply to the supreme court at a special term 
thereof, to be held in the judicial district in which such 
bridge, or any part thereof, shall be located, for an order 
requiring such commissioners to build, rebuild or repair 
such bridge, and the court upon such motion may, in 
doubtful cases, refer the case to some disinterested person 
to ascertain the requisite facts in relation thereto, and to 
report the evidence thereof, to the court. Upon the 
coming in of the report, in case of such reference, or 
upon or after the hearing of the motion, in case no such 
reference shall be ordered, the court shall make an order 
thereon as the justice of the case shall require. If the 
motion be granted in whole or in part, whereby funds 
shall be needed by the commissioners to carry the order 






140 


The Highway Law of New York. 


Commissioners to institute proceedings. 


into effect, such court shall specify the amount of money 
required for that purpose, and how much thereof shall be 
raised in each town. 

Revised from L. 1857, eh. 639, §§1,2. 

Decisions under the act of 1857, ch. 639, authorizing the supreme court 
to order the building of a bridge over a steam forming the boundary be¬ 
tween two towns. (Matter of Mt. Morris and Castile, 41 Hun, 29; Matter 
of Commissioners of Glen v. Florida, 20 St. Rep. 394; Ex parte Commis¬ 
sioners of Allegany and Carrolton, 59 N. Y. 313; Case of Irondequoit and 
Penfield, 68 N. Y. 376; Matter of Spier, 115 N. Y. 665; s. c., 20 St. Rep. 
389.) 


§ 137. Commissioners to institute proceedings .— 
The commissioners of highways of any such town, may 
institute and prosecute proceedings under this chapter, in 
the name of the town, to compel the commissioners of 
such adjoining towns, to join in the building, rebuilding 
or repair of any such bridge, in like manner as freeholders 
are hereby authorized. 

Revised from L. 1857, eh. 639, § 3. 

See Beckwith v. Whalen, 65 N. Y. 322; Phelps v. Hawley, 3 Lans. 160. 

§ 138. Their duty .—The order for building, rebuilding 
or repairing a bridge being made, and a copy thereof 
being served on the commissioners of highways of such 
adjoining towns respectively, the commissioners of high¬ 
ways of such towns shall forthwith meet and fix on the 
plan of such bridge, or the manner of repairing the same, 
and shall cause such bridge to be built, rebuilt or repaired 
out of any funds in their hands applicable thereto; and if 
an adequate amount of funds are on hand, they shall 
cause the same to be built, rebuilt or repaired upon credit, 
or in part for cash and in part upon credit, according to the 
exigency of the case; and the commissioners may enter 
into a contract for building, rebuilding or repairing such 




The Highway Law of New York. 


141 


Commissioners to report. 


bridge, pledging the credit of each town for the payment 
of its appropriate share, so far as the same shall he upon 
credit. 

Revised from L. 1857, ch. 639, § 4. 

§ 139. Commissioners to report .—The commissioners 
of highways of each town, shall make a full report of 
their proceedings in the premises to the town board, at 
the time of making their annual report. They shall attach 
to the copy of the order granted by the supreme court, an 
accurate account under oath, of what has been done in 
the premises, and deliver the same to the supervisor of 
their town. The board of supervisors at their annual 
meeting, shall levy a tax upon each of such towns, when 
in the same county, and upon the appropriate town when 
in different counties, for its share of the costs of building, 
rebuilding or repairing such bridge, after deducting all 
payments actually made by the commissioners thereon; 
which tax, including prior payments, shall in no case 
exceed the amount specified in the order. 

Revised from L. 1857, ch. 639, § 5. 

§ 140. Appeals .—Either party aggrieved by the grant¬ 
ing or refusing to grant such order by the court at special 
term, may appeal from such decison to the general term 
of the supreme court for the review of the decision. 
The general term, may alter, modify or reverse the order, 
with or without costs. 

Revised from L. 1857, ch. 639, ^ 6. 

§ 141. Power of court on appeal. —The special term 
ma y grant or refuse costs as upon a motion, including 
also witnesses' fees, referees’ fees and disbursements. 
The appeal provided for in the last preceding section, shall 
conform to the practice of the supreme court, in case of 





142 


The Highway Law of New York. 


Refusal to repair bridge. 


appeal from an order of a special term, to the general 
term. 

Revised from L. 1857, ch. 639, § 7. 

§ 142. Refusal to repair bridge .—Whenever an} 7 such 
bridge shall have been or shall be so out of repair as to 
render it unsafe for travelers to pass over the same, or 
whenever any such bridge shall have fallen down, or been 
swept away by a freshet or otherwise, if the commis¬ 
sioners of highways of the adjoining towns after reasonable 
notice of such condition of the bridge, have neglected or 
refused, or shall neglect or refuse to repair or rebuild it, 
then whatever funds have been or shall be necessarily or 
reasonably laid out or expended in repairing such bridge, 
or in rebuilding the same, by any person or corporation, 
shall be a charge on such adjoining towns, each being 
liable for its just proportion; and the person or corpora¬ 
tion who has made such expenditure, or shall make such 
expenditures, may apply to the supreme court, at a special 
term, for an order requiring such towns severally to reim¬ 
burse such expenditures, which application shall be made 
by serving papers upon the commissioners of highways of 
each of such towns at least eight days; and the court may 
grant an order requiring each of the adjoining towns to 
pay its just proportion of the expenditures, specifying the 
same; and the commissioners of highways in each of 
such towns shall forthwith serve a copy of such order upon 
the supervisor of each of their towns, who shall present 
the same to the board of supervisors, at their next annual 
meeting. The board of supervisors shall raise the amount 
charged upon each town by the order, and cause the same 
to be collected and paid to such persons or corporation as 
incurred the expenditure. The order shall be appealable. 

Revised from L. 1857, ch. 639, § 8. 

See § 10, ante , where bridge lies wholly within a town; and notes under 
§ 135, ante. 






The Highway Law of New York. 


143 


Penalty, and notice on bridge. 


§ 143. Penalty 9 and notice on bridge .—The commis¬ 
sioners of highways may fix and prescribe a penalty, not 
less than one, nor more than five dollars, for riding or 
driving faster than a walk on any bridge in their town, 
whose chord is not less than twenty-five feet in length 
and put up and maintain in a conspicuous place at each 
end of the bridge, a notice in large characters, stating 
each penalty incurred. 

Revised from 1 R. S., eh. 16, tit. 1, art. 6, § 122, as amended by L. 1875, 
eh. 22, § 1, and from L. 1878, eh. 477, §§ 1, 2. 

§ 144. Offense .—Whoever shall ride or drive faster 
than a walk over any bridge, upon which notice shall have 
been placed, and shall then be, shall forfeit for every 
offense, the amount fixed by such commissioners, and 
specified in the notice. 

Revised from 1 R. S., eh. 16, tit. 1, art. 6, §§ 123, 124, as amended by L. 
1875, eh. 22, § 2, and from L. 1873, eh. 477, § 3. 

§ 145. Iron bridges .—No town or its officers shall be 
compelled to accept or pay for an iron or steel bridge 
exceeding two hundred feet in length, or having a span 
or spans exceeding one hundred feet in length, constructed 
therein or upon its borders, until the state engineer and 
surveyor shall certify to the completion of the bridge, 
pursuant to the contract under which it shall have been 
constructed, with his approval of the manner of its con¬ 
struction and the material thereof; and all contracts made 
for the construction of any such bridge, shall be subject 
to the provisions of this section. 

New. 

See White v. Town of Ellisburgh, 18 App. Div. 514; People , ex rel. 
Slater v. Smith, 83 Hun, 432. 




144 


The Highway Law of Yew York. 


Miscellaneous provisions. 


AKTICLE VI. 

Miscellaneous Provisions. 

Section 150. Papers, where filed. 

151. When commissioners do not act. 

152. Costs on motion. 

153. Injuries to highways. 

154. When town not liable for bridge breaking. 

155. Steam traction engine on highway. 

156. Trees, to whom they belong. 

157. Carriages meeting to turn to the right. 

158. Intemperate drivers not to be engaged. 

159. Drivers, when to be discharged. 

160. Leaving horses without being tied. 

161. Owners of certain carriages liable for acts of drivers. 

162. Term “carriage” defined. 

163. Entitled to free use of highways. 

164. Penalties, how recovered. 

165. Extent of this chapter.* 

165. Stone and rubbish not to be dumped in highways. 

Section 150. Papers, where filed.—All applications, 
certificates, appointments and other papers relating to the 
laying out, altering or discontinuing of any highway shall 
be filed by the commissioners of highways as soon as a 
decision shall have been made thereon in the town clerk’s 
office of their town. 

Revised from 1 R. S., ch. 16, tit. 1, art. 4, § 83. 

Where an application to lay out a highway had been duly filed as pre¬ 
scribed in this section, it was held that further proof of the signatures to 
the application was not necessary. The paper was a public record and 
proved itself. ( Van Bergen v. Bradley, 36 N. Y. 316.) 


* So in the original. 





The Highway Law of New York. 


145 


When commissioners do not act. 


See McCarthy v. Whalen, 19 Hun, 503; Phillips v. Schumacher, 10 Hun, 
405; Patterson v. New York, 1 Paige, 114. 


§ 151. When commissioners do not act .—When any 
commissioner or other officer appointed by a court under 
this chapter shall neglect or be prevented from serving, 
the court which appointed him shall appoint another in 
his place. 

New. 


§ 152. Costs on motion .—Costs of a motion to confirm, 
vacate or modify the report of commissioners appointed 
by the court to lay out, alter or discontinue a highway 
may be allowed in the discretion of the court not exceed¬ 
ing fifty dollars. Costs of any other motion in a proceed¬ 
ing in a court of record, authorized by this chapter, may 
be allowed in the discretion of the court not exceeding ten 
dollars. 

New. 

See § 92, ante, and notes thereunder, as to costs, by whom paid. 


§ 153. Injuries to highways .—Whoever shall injure 
an} T highway or bridge maintained at the public expense 
by obstructing or diverting any creek, water-course or 
sluice, or by dragging logs or timber on its surface, or by 
any other act, or shall injure, deface or destroy any mile¬ 
stone or guide-post erected on any highway, shall for 
every such offense, forfeit treble damages. 

Revised' from 1 R. S., ch. 16, tit. 1, art. 7, §§ 128-130. 

See §§ 104, 105, ante, and notes thereunder as to obstructions in high¬ 
way, and how removed; § 15, ante, and notes thereunder as to actions for 
injuries to highways; § 164, post, as to actions by commissioners to recover 
penalties. 


10 




The Highway Law of New York. 


146 


Injuries to highways. 


Penal Code Provisions. 

§ 378. Floating logs or defacing marks thereon. —A person who: 

1. Floats, runs or assists in floating or running any lumber, logs or other 
timber upon or over any river not excepted by law, within this state, 
recognized by law or use as a public highway for the purpose of floating 
and running lumber, logs and other timber therein, without first filing 
the bond executed and approved as required by law; 

• •••••« • • • 

Is guilty of a misdemeanor. 

§ 385. “Public nuisance” defined. —A public nuisance is a crime 
against the order and economy of the state, and consists in unlawfully 
doing an act, or omitting to perform a duty, which act or omission; 

• • • • • • • • • • 

3. Unlawfully interferes with, obstructs, or tends to obstruct, or renders 
dangerous for passage, a lake, or a navigable river, bay, stream, canal or 
basin, or a public park, square, street or highway; 

• ••• •••••• 

§ 429. Ice cuttings and bridges. — ... A person who cuts, loosens 
or detaches from any bay, estuary, inlet, or main, or island shore of the 
St. Lawrence river, within the jurisdiction of this state, any field of ice, 
or large body of ice, used or suited for use, as a bridge or passage way 
between an island of the river and the main shore, or between any islands 
of such river, is guilty of a misdemeanor. 

§ 431. Noisome or unwholesome substances, etc., in highway. —A 
person, who deposits, leaves or keeps, on or near a highway or route of 
public travel, either on the land or on the water, any noisome or unwhole¬ 
some substance, or establishes, maintains or carries on, upon or near a 
public highway or route of public travel, either on the land or on the 
water, any business, trade or manufacture which is noisome or detrimen¬ 
tal to public health, is guilty of a misdemeanor, punishable by a fine of 
not less that one hundred dollars, or by imprisonment not less than three 
nor more than six months, or both. 

§ 639. Injuring highway boundary, pier, sea wall, dock, rock, 

BOUY, LANDMARK, MILE BOARD, PIPE, MAIN, SEWER, MACHINE, TELEGRAPH, 

etc.— A person who wilfully or maliciously displaces, removes,injures, or 
destroys, 





The Highway Law of New Yokk. 


147 


When town not liable for bridge breaking. 


1. A public highway or bridge, or a private way laid out by authority 
of law, or a bridge upon such public or private way; or, 

• ••••• •••• 

6. A mile board, mile stone, or guide post, erected upon a highway, or 
any inscription upon the same; 

• • ••••«••• 

Is punishable by imprisonment for not more than two years. 

§ 661. Throwing substance injurious to animals in public place, 
a misdemeanor. —A person who wilfully throws, drops or places, or 
causes to be thrown, dropped or placed, upon any road, highway, street 
or public place, any glass, nails, pieces of metal or other substance which 
might wound, disable or injure any animal, is guilty of a misdemeanor. 

§ 154. When town not liable for bridge breaking. 
—No town shall be liable for any damage resulting to 
person or property, by reason of the breaking of any 
bridge, by transportation on the same, of any vehicle and 
load, together weighing four tons or over; but any owner 
of such vehicle or load, or other person engaged in trans¬ 
porting or driving the same over any bridge, shall be lia¬ 
ble for all damages resulting therefrom. 

Revised from L. 1837, ch. 526, § 1, as amended by L. 1890, ch. 210. 

See § 16, ante, and notes thereunder as to liability of town for defective 
highway. 


§ 155. Steam traction engines on highway.—The 
owner of a carriage, vehicle or engine, propelled by steam, 
his servant or agent, shall not allow, permit oi use the 
same to pass over, through or upon any public highway 
or street, except upon railroad tracks, unless such owners, 
or their agents or servants, shall send before the same, a 
person of mature age, at least one-eighth of a mile in 
advance, who shall notify, and warn persons traveling or 
usin^ such highway or street, with horses or other domes¬ 
tic animals, of the approach of such carriage, vehicle or 






148 


The Highway Law of Hew York. 


Trees, to whom they belong. 


engine; and at night such person shall carry a red light, 
except in incorporated villages and cities. 

Revised from L. 1886, ch. 269. 

Penal Code Provision. 

§ 640 Malicious injury and destruction to property. —A person 
who wilfully, 

11. Drives or leads along a publicpiighway a wild and dangerous animal, 
or a vehicle or engine propelled by steam, except upon a railroad, along a 
public highway, or causes or directs such animal, vehicle or engine to be 
so driven, led, or to be made to pass, unless a person of mature age shall 
precede such animal, vehicle or engine by at least one-eighth of a mile 
carrying a red light, if in the night-time, and gives warning to all persons 
whom he meets traveling such highway, of the approach of such animal 
vehicle or engine; 


Shall be deemed guilty of a misdemeanor. 

§ 156. Trees, to whom they belong .—All trees stand¬ 
ing or lying on any land over which any highway shall be 
laid out, shall be for the proper use of the owner or occu¬ 
pant of such land, except such of them as may be requisite 
to make or repair the highway or bridges on the same 
land. 

Revised from 1 R. S., ch. 16, tit. 1, art. 7, § 126. 

See notes under § 105, ante, as to the removal of trees as encroachments; 
L. 1881, ch. 344, Appendix, post, as to prevention of mutilation of shade 
trees; Village Law, § 89, sub. 8, as to power of village trustees to protect 
shade trees. 

See Edsall v. Howell, 86 Hun, 424, as to the ownership of trees set out 
by an abutting owner after the laying out of a highway and as to the 
measure of damages for their destruction. 

Where, in a grant of land, there is a presumption that the grantee owns 
to the center of the street, all shade trees in front of the premises belong 
to such grantee. ( McCruden v. Rochester Ry. Co., 5 Misc. 59.) 





The Highway Law of New York. 


149 


Carriages meeting to turn to the right. 


§ 157. Carriages 'meeting to turn to the right .— 
Whenever any persons traveling with any carriages, shall 
meet on any turnpike road or highway, the persons so 
meeting shall seasonably turn their carriages to the right 
of the center of the road, so as to permit such carriages to 
pass without interference or interruption, under the pen¬ 
alty of five dollars for every neglect or offense, to be 
recovered by the party injured. 

Revised from 1 R. S., eh. 20, tit. 13, § 1. 

See notes under § 100, ante , as to the uses of and right of passage over 
highways. 

See § 163, post, as to the free use of highways; Railroad Law, § 33, 
Appendix, post, as to the duties of railroads at crossings; see, also, Thorn¬ 
ton on Railroad Fences. 

It is extremely doubtful whether the law in regard to keeping to the 
right on a public highway applies to any one except the drivers of vehicles 
of some kind; and even as to them there are many exceptions. ( Mooney 
v. Trow, cSee. Co., 2 Misc. 238; Newman v. Ernst, 31 St. Rep. 1; Harpell v. 
Curtis, 1 E. D. Smith, 78; Pike v. Bosworth, 7 St. Rep. 665; Smith v. 
Dygert, 12 Barb. 613.) 

Runaway horses should be guided to the right side of the road to avoid 
a collision. But if the horses are beyond the control of the driver and he 
uses due diligence and the best of his ability as a skillful driver to control 
them, the law of the road does not apply. (Cadwett v. Arnheim, 81 Hun, 
39; s. c,. 152 N. Y. 182.) 

The centre of the road means the centre of the worked part of the road; it 
is immaterial that one side was rougher than the other. ( Earing v. Lansing , 
7 Wend. 185; Simmonsonv. SteUenmerf, Edm. S. C. 194; Pike v. Bosivorth, 
7 St. Rep. 665.) And when snow is upon the ground it is sufficient to keep 
to the centre of the beaten track. ( Smith v. Dygert, 12 Barb. 613.) 

The rule does not apply to a traveller on horseback meeting another 
horseman or a vehicle; reasonable care is all that is required in such case. 
IDudley v. Bolles , 24 Wend. 465.) 

A person driving upon a public highway in advance of another vehicle 
is not bound to give way or give facilities to the o\eitaking \ehicle to 
enable it to pass; but he is bound to refrain from any manoeuvre calculated 




150 


The Highway Law of New Yoke. 


Carriages meeting to turn to the right. 


to embarass an overtaking vehicle in its attempt to pass. ( Crabtree v. 
Otter son. 22 App. Div. 393.) 

Where obstructions of a serious nature exist on one side of the road, 
the rule may be said not to apply. ( Mooney v. Trow Directory, &c. Co., 
2 Misc. 238; Earing v. Lansing, 7 Wend. 185; Pike v. Bosworth, 7 St. Rep. 
665; Simmonson v. Stellenmerf, Edm, S. C. 194.) 

In an action brought for negligence causing a collision upon a highway, 
the plaintiff is bound to show that although upon the right side of the 
highway he endeavored to avoid collision. (Schimpf v. Sliter, 64 Hun f 
463.) 

One who is on the wrong side is presumptively negligent; but the other 
party must show his injury as a result of such negligence and also his own 
freedom from contributory negligence. (Newman v. Ernst, 31 St. Rep. 1.) 
And it is no excuse when one is driving on the wrong side that he had no 
time to turn out. (Simmonson v. Stellenmerf, Edm. S. C. 194; Pike v. Bos- 
worth , 7 St. Rep. 665.) 

This section is of necessity inapplicable to street railway vehicles when 
meeting common vehicles in the streets of a city. (Hegan v. Railroad 
Co., 15 N. Y. 380; Whitaker v. Railroad Co., 51 N. Y. 295.) So with a 
steam railroad company. (Barker v. Railroad Co., 4 Daly, 274.) And a 
street railway has the right of way in respect to vehicles passing between 
their tracks either way; but in crossing other streets than that upon which 
their tracks are laid, street car companies have no rights superior to other 
vehicles. (Buhrens v. Railroad Co., 125 N. Y. 702; O'Neil v. Railroad Co. 
129 N. Y. 125.) 

Foot passengers and vehicles have equal rights in the highways and 
especially at street crossings; they are bound not only to use reasonable 
care as to their own safety, but also to avoid doing injury to others. 
(Barker v. Savage, 45 N. Y. 191; Belton v. Baxter, 54 N. Y. 245; Atkinson 
v. Oelsner, 32 St. Rep. 1088; Modbus v. Herman, 108 N. Y. 349; Durant v. 
Lipsius, 5 St. Rep. 841; Murphy v. Orr, 96 N. Y. 14; Birket v. Knicker¬ 
bocker Ice Co., 110 N. Y. 504; s. c., 41 Hun, 404; Cowan v. Snyder, 5 Supp. 
340; Henderson v. Knickerbocker Ice Co., 23 St. Rep. 530; s. c., 119 N. Y. 
619; Brooks v. Schwerin, 54 N. Y. 343.) 

Where two vehicles approach each other on streets running at a right 
angle, neither has the right of way; the one first signalling his intention 
to proceed, has a right to expect that his signal will be obeyed. (Koester 
v. Decker, 22 Misc. 353.) As to two street cars. (Loudoun v. Railroad Co., 







The Highway Law of New York. 


151 


Intemperate drivers not to be engaged. 


16 App. Div. 152); and as to a motor car and vehicle {Bresky v. Railroad 
Co., 16 App. Div. 83; Hergert v. Union Ry. Co., 25 App. Div. 218; Huber 
v. Nassau R. R. Co., 22 App. Div. 426.) 

Penal Code Provision as to Railroad Crossings. 

§ 421. Duties of locomotive engineers. —A person acting as engineer, 
driving a locomotive on any railway in this state, who fails to ring the 
bell, or sound the whistle, upon such locomotive, or cause the same to be 
rung or sounded, at least eighty rods from any place where such railway 
crosses a traveled road or street on the same level (except in cities) or to con¬ 
tinue the ringing of such bell or sounding such whistles at intervals, until 
such locomotive, and the train to which the locomotive is attached, shall 
have completely crossed such road or street, or any officer of a corporation 
who shall wilfully obstruct, or cause to be obstructed, any farm or high¬ 
way crossing with any locomotive or car for a longer period than five con¬ 
secutive minutes, is guilty of a misdemeanor. 

As to the right of way of an ambulance in preference to an ice wagon. 
{Byrne v. Knickerbocker Ice Co., 21 St. Rep. 469; s. c., 121 N. Y. 700.) 

Penal Code Provision as to Ambulance. 

§ 432. Ambulances. —A person who wilfully stops or obstructs the pas¬ 
sage of any ambulance or vehicle used for the transportation of sick or 
wounded persons or animals upon any public street, highway or place, or 
who wilfully injures the same, or wilfully drives any vehicle into collis- 
sion therewith, is guilty of a misdemeanor. 

Care required of one driving in a public street, as to street sweepers, &c. 
{Smith v. Bailey, 14 App.-Div. 283.) 

Where a railway car obstructs the crossing of a public street, a traveller 
has a right to pass over its platform. {Shea v. Railroad Co., 62 N. Y. 180.) 

See Baumann v. Gilmour, 31 St. Rep. 283; O'Neil v. Railroad Co., 3 
Misc. 521. 


§ 158. Intemperate drivers not to be engaged .— 
No person owning any carriage for the conveyance of 
passengers, running or traveling upon any highway or 
road, shall employ, or continue in employment, any per¬ 
son to drive such carriage, who is addicted to drunken¬ 
ness, or to the excessive use of spirituous liquor; and if 




152 


The Highway Law of New York. 


Drivers, when to be discharged. 


any such owner shall violate the provisions of this section, 
he shall forfeit at the rate of five dollars per day, for all 
the time during which he shall have kept any such driver 
in his employment. 

Revised from 1 R. S., eh. 20, tit. 13, § 2. 

§ 159. Drivers, when to he discharged .—If any 
driver, while actually employed in driving any such car¬ 
riage, shall be guilty of intoxication, to such a degree as 
to endanger the safety of the passengers in the carriage, 
the owner of such carriage shall, on receiving written 
notice of the fact, signed by any one of said passengers, 
and certified by him on oath, forthwith discharge such 
driver from his employment; and every such owner, w T ho 
shall retain, or have in his service within six months 
after the receipt of such notice, any driver who shall have 
been so intoxicated, shall forfeit at the rate of five dollars 
per day, for all the time during which he shall keep any 
such driver in his employment after receiving such notice. 
Revised from 1 R. S., eh. 20, tit. 13, § 3. 

§ 160. Leaving horses without being tied .—No 
driver of any carriage used for the purpose of conveying 
passengers for hire, shall leave the horses attached 
thereto, while passengers remain in the same, without 
first making such horses fast with a sufficient halter, rope 
or chain, or by placing the lines in the hands of some other 
person, so as to prevent their running; and if any such 
driver shall offend against the provisions of this section, 
he shall forfeit the sum of twenty dollars. 

Revised from 1 R. S., eh. 20, tit. 13, § 5. 

See Code of Civil Procedure, ’§§ 3082-3115, Appendix, x>ost, as to action 
or special proceeding relating to an animal straying upon the highway. 

Cow obstructing highway by her tethering rope. ( Gulliver v. Blauvelt. 
14 App. Div. 523.) 

See Davis v. Kallfelz , 22 Misc. 602. 




The Highway Law of New York. 


153 


Owners of certain carriages liable for acts of drivers. 


§ 161. Owners of certain carriages liable for acts 
of drivers .—The owners of every carriage running or 
traveling upon any turnpike road or highway, for the con¬ 
veyance of passengers, shall be liable jointly and severally, 
to the party injured, for all injuries and damages done by 
any person in the employment of such owners, as a driver, 
while driving such carriage, whether the accident* occa¬ 
sioning such injury or damage be willful or negligent, or 
otherwise, in the same manner as such driver would be 
liable. 

Revised from 1 R. S., ch. 20, tit. 13, § 0. 

At common law the liability of the owner of a vehicle, used for the 
transportation of persons for injuries resulting from the acts of his driver, 
extends to those injuries only which result from the driver’s misjudgment 
or negligence while engaged for the owner in his vocation as a driver. 
{Whitaker v. Railroad Co., 51 N. Y. 295; Wright v. Wilcox, 19 Wend. 344; 
Hibbard v. R. R. Co., 15 N. Y. 467; Mali v. Lord, 39 N. Y. 383; Fraser v. 
Freeman, 43 N. Y. 566; Isaacs v. R. R. Co., 47 N. Y. 122.) 

This section held not to apply to the driver of a street railway company. 
Whitaker v. Railroad Co., 51 N. Y. 295.) Nor to the conductor. ( Isaacs 
v. Railroad Co., 47 N. Y. 122.) See, also, Rounds v. Railroad Co., 64 
N. Y. 129; Mott v. Consumers' Ice Co., 73 N. Y. 543; Shea v. Railroad Co., 
62 N. Y. 180; Stewart v. Railroad Co., 90 N. Y. 588. 


§ 162. Term “carriage” defined .—The term “ car¬ 
riage,” as used in this article, shall be construed to 
include stage-coaches, wagons, carts, sleighs, sleds and 
every other carriage or vehicle used for the transportation 
of persons and goods, or either of them, and bicycles, 
tricycles and all other vehicles propelled by manumotive 
or pedimotive power. 

Revised from 1 R. S., ch. 20, tit. 13, § 7, and from L. 188 <, ch. <04, ^ 1. 


*So in the original. 





154 


The Highway Law of New York. 


Entitled to free use of highways. 


§ 163. Entitled to free use of highways .—The 
commissioners, trustees, or other authorities having charge 
or control of any highway, public street, parkway, drive¬ 
way or place, shall have no power or authority to pass, 
enforce, or maintain any ordinance, rule or regulation, 
by which any person using a bicycle or tricycle, shall be 
excluded or prohibited from the free use of any highway, 
public street, avenue, roadway, driveway, parkway or 
place, at any time when the same is open to the free use 
of persons having and using other pleasure carriages; 
but nothing herein, shall prevent the passage, enforce¬ 
ment or maintenance of any regulation, ordinance or rule, 
regulating the use of bicycles or tricycles in highways, 
public streets, driveways, parkways and places, in such 
manner as to limit and determine the proper rate of speed 
with which such vehicles may be propelled, nor in such 
manner as to require, direct or prohibit the use of bells, 
lamps and other appurtenances, nor to prohibit the use* 
any vehicle upon that part of the highway, street or park¬ 
way, commonly known as the foot path or sidewalk. 

Revised from L. 1887, ch. 704. 

See notes under § 100, ante, as to the uses of and right of passage over 
highways. 

See § 157, ante, and notes thereunder, as to the law of the road and 
crossings. 


Penal Code Provisions. 

§ 652. Driving vehicles, et cetera, on sidewalks. —A person who 
wilfully and without authority or necessity drives any team, vehicle, cat¬ 
tle, sheep, horse, swine or other animal along upon a sidewalk is punish¬ 
able by a fine of fifty dollars, or imprisonment in the county jail not 
exceeding thirty days, or both. 

1. A person who wilfully and without authority or necessity drives any 
team or vehicle, except a bicycle, upon a side path, or wheelway, con- 


*So in the original. 





The Highway Law of New York. 


155 


Penalties, how recovered. 


strncted by or exclusively for the use of bicyclists, and not constructed in 
a street of a city, is punishable by a fine of not more than fifty dollars, or 
imprisonment not exceeding thirty days, or both. 

§ 654a. Placing injurious substances on roads, etc.— Whoever, with 
intent to prevent the free use of a cycle thereon, shall throw, drop or 
place, or shall cause or procure to be thrown, dropped or placed, in or 
upon any cycle path, avenue, street, sidewalk, alley, road, highway or 
public way or place, any glass, tacks, nails, pieces of metal, brier, thorn 
or other substance which might injure or puncture any tire used on a 
cycle, or which might wound, disable or injure any person using such 
cycle, shall be guilty of a misdemeanor, and on conviction be fined not less 
than five nor more than fifty dollars. 

See Lechner v. Village of Newark , 19 Misc. 452, as to ordinance allowing 
bicycles upon sidewalks. 

See also Fuller v. Redding , 13 App. Div. 61. 

§ 164. Penalties, how recovered .—All [penalties or 
forfeitures given in this chapter, and not otherwise 
specially provided for, shall be recovered by the commis¬ 
sioners of highways, in the name of the town in which 
the offence shall be committed; and when recovered, 
shall be applied by them in improving the highways and 
bridges in such town. 

Revised from 1 R. S., ch. 16, tit. 1, art. 7, § 131. 

See g 15, ante , as to actions by commissioners for injuries to highways, 
and § 105, ante , as to actions to compel the removal of encroachments. 

There is no provision in the statute which authorizes the commissioners 
of highways of two towns to unite as plaintiffs and bring an action to 
recover the penalty or forfeiture for an encroachment upon a highway. 
The authority of such officers to maintain actions is given by statute, and 
is confined to those of the town where the offense had been committed, 
{Bradley v. Blair , 17 Barb. 480.) 

Commissioners of highways cannot maintain a suit in their official 
names or titles; but must use their individual names, annexing their 
official titles. {Supervisor of Galway v. Stimson, 4 Hill, 176; Commis¬ 
sioners v. Peck , 5 Hill, 215; Gould v. Glass, 19 Barb. 179.) 

See Commissioners v. Peck , 5 Hill, 215; Trustees of Jordon v. Otis , 37 
Barb. 50. 




156 


The Highway Law of New York. 


Stone and rubbish not to be dumped in highways. 


§ 165. Stone and rubbish not to be dumped in high¬ 
ways ,—No stone or other rubbish shall be drawn to and 
deposited within the limits of any highway, except for 
the purpose of filling in a depression or otherwise improv¬ 
ing the highway, with the consent of the commissioner 
of highways and under the direction of a commissioner or 
overseer of highways. 

Added by L. 1898, ch. 352. 




The Highway Law of New York. 


157 


Regulation of ferries. 


ARTICLE VII. 

Regulation of Ferries. 

Section 170. Licenses. 

171. Undertaking. 

172. Appendages for rope ferries. 

173. Superintendent of public works may lease right of passage. 

174. When schedules to be posted. 

Section 170. Licenses .—The county court in each of 
the counties of this state, or the city court of a city, may 
grant licenses for keeping ferries in their respective 
counties and cities, to such persons as the court may deem 
proper, for a term not exceeding five years. No license 
shall be granted to a person, other than the owner of the 
land through which that part of the highway adjoining to 
the ferry shall run, unless the owner is not a suitable 
person or shall neglect to apply after being served with 
eight days’ written notice from such other person of the 
time and place at which he will apply for such license, or 
having obtained such license, shall neglect to comply with 
the conditions of the license, or maintain the ferry. 
Every license shall be entered in the book of minutes of 
the court by the clerk; and a certified copy thereof shall 
be delivered to the person licensed. When the waters 
over which any ferry may be used, shall divide two 
counties or cities, or a county and city, a license obtained 
in either of the counties or cities shall be sufficient to 
authorize transportation of persons, goods, wares and 
merchandise, to and from either side of such waters. 

Revised from 1 R. /S'., ch. 16, tit. 2, §§ 1-3, 5-9. 

See County Law, § 78, Appendix, post, as to regulation of ferries by 
board of supervisors; notes under § 100, ante, as to ferries as highways. 




158 


The Highway Law of New York. 


Licenses. 


Penal Code Provision. 

§ 415. Ferries.—A person who: 

1. Maintains a ferry for profit or hire upon any of the waters of this 
state without authority of law; or, 

2. Having entered into a recognizance to keep or maintain a ferry, vio¬ 
lates the condition of such recognizance, 

Is guilty of a misdemeanor. 

Where such ferry is upon waters dividing two counties, the offender 
may be prosecuted in either county. 

As to the granting of ferry licenses or rights by the legislature being in 
violation of the state constitution. ( Matter of the Union Ferry Co., 98 
N. Y. 139.) 

The legislature has power to regulate, control and define the powers of 
persons or corporations under ferry franchises. ( Spader v. New York 
Elevated Railroad Co., 3 Abb. N. C. 467; Power v. Athens, 99 N. Y. 592; 
Matter of Union Ferry Co., 98 N. Y. 139; New York v. Starin, 106 N. Y. 1.) 

The right to license ferries carries with it the right to grant exclusive 
privileges. ( Costar v. Brush , 25 Wend. 628.) A ferry license, however, 
will not be held to be exclusive, unless there is something therein show¬ 
ing plainly that exclusive rights were intended to be granted. (Power v. 
Athens, 99 N. Y. 592.) 

The grant of a ferry right by the state is not necessarily exclusive of 
the right to grant similar privileges to other parties. ( Thompson v. New 
York and Harlem Railroad Co., 3 Sand. Ch. 625.) 

A ferry license may not be granted without the notice to the land 
owner required by this section ; the owners of a rival ferry may complain 
of the lack of notice. (Matter of Talcott, 31 Hun, 464.) 

Notice need not be given in applying for a ferry license to persons who 
have obtained a license for a ferry at the same place. (Wiswall v. Wan- 
dell, 3 Barb. Ch. 312.) 

It is not illegal for the grantees of an exclusive ferry right to agree to 
try to prevent the establishment of a third ferry. (Costar v. Brush 25 
Wend. 628.) 

As to when it is proper to establish and operate ferries. (New York v. 
Steamboat Co., 106 N. Y. 28.) 

A ferry maintained without objection for a number of years will be 
presumed to have been lawfully established. (Jordan v. Gas Light Co. 

65 How, Pr. 255.) 




The Highway Law of New York. 


159 


Licenses. 


Circumstances not amounting to a violation of the statutes in reference 
to maintaining a ferry without authority of law. (People v. Mago , 69 
Hun, 559.) 

Where a ferry franchise has been granted and accepted it partakes of 
the nature of a contract, and as such is protected by the United States con¬ 
stitution. ( Benson v. New York , 10 Barb. 223.) 

Ferry rignts are not to be construed strictly against the grantees there¬ 
of. (New York v. Starin, 106 N. Y. 1.) 

As to the leasing of ferry rights or licenses. (Dewint v. Wiltsie, 9 
Wend. 325 ; Starin v. New York, 42 Hun, 549 ; Staten Island Rapid 
Transit Co. v. New York, 2 Supp. 680 ; s. c., 110 N. Y. 96.) 

The grantees of ferry rights are obliged to maintain a ferry with suit¬ 
able accommodations for the public. (New York v. Starin , 106 N. Y. 1.) 

A municipal corporation may require ferry property to be repaired and 
put in safe condition. (Jordan v. Gas-Light Co., 65 How. Pr. 255.) 

A grant of land under water, with a reservation of a portion thereof 
“for the uses and purposes of public streets, avenues and highways,” 
includes in such reservation a use of the land for ferry purposes. (Jordan 
v. Gas-Light Co., 65 How. Pr. 255.) 

When a railroad has been granted the right to transfer its passengers 
to a public ferry it has no right to transfer other persons to the injury of 
the ferry owners. (Aikin v. Western Railroad Co., 20 N. Y. 370.) 

The city of New York has the exclusive right to establish and regulate 
ferries from its shores to opposite ones, such as Long Island, Staten 
Island, &c. (New York v. Long street, 64 How. Pr. 30; Benson v. Neiv York, 
10 Barb. 223; Darlington v. New York, 31 N. Y. 202; Neiv York v. New 
York and Staten Island Ferry Co., 49 How. Pr. 250; People v. New York 
and Staten Island Ferry Co., 49 How. Pr. 511; New York v. Starin, 106 N. 
Y. 1; New York v. New Jersey Steamboat Nav. Co., 106 N. Y. 28.) But see 
as to ferries over the East River, Matter of Union Ferry Co., 98 N. Y. 139. 
See, also, Cunard Steamship Co. v. Voorhies, 18 J. & S. 253; s. c., 104 N. 
Y. 525. 

The Niagara common pleas has power to grant licenses for ferries over 
the Niagara river, though the jurisdiction of the state extends only to the 
centre of the river. (People v. Babcock, 11 Wend. 586.) 

The city of Albany has exclusive control of all ferries within its limits. 
(Aikin v. Western Railroad Corporation, 20 N. Y. 370.) 




160 


The Highway Law of New York. 


Undertaking. 


As to the right of ferriage between Hudson and Athens on the Hudson 
river. ( Power v. Athens, 99 N. Y. 592.) 

Cases treating of negligence of ferry proprietors or corporations. 
( Wyckoff v. Queens County Ferry Co., 52 N. Y. 32; Loftus v. Union Ferry 
Co., 22 Hun, 33; s. c., 84 N. Y. 455; Bartlett v. Transportation Co., 29 St. 
Rep. 357; Hoffman v. Union Ferry Co., 68 N. Y. 385; Ferris v. Union 
Ferry Co., 36 N. Y. 312; Hazman v. Hoboken, &c. Co., 50 N. Y. 53; Hawks 
v. Winans, 10 J. & S.451; s. c., 74 N. Y. 609; Tonkins v. New York Fem*y 
Co., 47 Hun, 562; Fitzpatrick v. Garrisons Ferry Co., 49 Hun, 288; Bar¬ 
tholomew v. Ferry Co., 28 St. Rep. 388; Snelling v. Ferry Co., 128 N. Y. 
579; s. c., 37 St. Rep. 184.) 

§ 171. Undertaking .—Every person applying for such 
license shall, before the same is granted, execute and file 
with the clerk of the court his undertaking, with one or 
more sureties, approved by the court, to the effect that he 
will attend such ferry with sufficient and safe boats and 
other implements, and so many men to work the same as 
shall be necessary during the several hours in each day, 
and at such rates as the court shall direct. 

Revised from 1 R. S., ch. 16, tit. 2, § 4. 

See Penal Code, § 415, under § 170, ante, as to violation of condition of 
undertaking. 

§ 172. Appendages for rope ferries .—Any person 
licensed to keep a ferry may, with the written consent of 
the commissioners of highways of the town where such 
ferry may be, erect and maintain within the limits of the 
highway, at such point as shall be designated in such 
consent, a post or posts, with all necessary braces and 
appendages, for a rope ferry. 

Revised from L. 1861, ch. 30, § 1. 

§ 173. Superintendent of public works may lease 
right of passage. —The superintendent of public works 
may where ferries are now maintained at tide-water, lease 




The Highway Law of New York. 


161 


When schedules to be posted. 


the right of passage for foot passengers across state lands 
adjoining tide water for a period not exceeding ten years, 
on such conditions as he may deem advantageous to the 
state. 

Revised from L. 1884, ch. 359, § 1. 

§ 174. When schedules to be posted .—Every person 
licensed to operate or control any ferry in this state, or 
between this state and any other state, operating from or 
to a city of fifty thousand inhabitants or over, shall post 
in a conspicuous and accessible position outside and adja¬ 
cent to each entrance to such ferry, and in at least four 
accessible places, in plain view of the passengers upon 
each of the boats used on such ferry, a schedule plainly 
printed in the English language, of the rates of ferriage 
charged thereon, and authorized by law to be charged for 
ferriage over such ferry. If any such person shall fail 
to comply with the provisions of this section, or shall 
post a false schedule, he shall forfeit the sum of fifty 
dollars for each days neglect or refusal to post such 
schedule, or any of them, to be recovered by any person 
who shall sue therefor, in any court of competent juris¬ 
diction. 

4 similar provision was found in L.1888, ch. 260, repealed by L. 1889, ch. 
489, § 3. 

See Transportation Corporations Law, § 6 , as to posting of schedule by- 
corporations. 

Penal Code Provision. 

g 415a. Penalty for neglect to post schedule of ferry rates.— 
A person, corporation or association operating any ferry in this state, or 
between this state and any other state, operating from or to a city of five 
hundred thousand inhabitants or over, posting a false schedule of ferry 
rates, or neglecting to post in a conspicuous and accessible place in each of 
its ferry-houses, in plain view of the passengers, a schedule, plainly 
11 




162 


The Highway Law of New York. 


When schedules to be posted. 


printed in the English language, of the rates of ferriage charged thereon 
and authorized by law to be charged for ferriage over such ferry, is guilty 
of a misdemeanor. 

The provision as to posting a schedule of ferry rates does not apply to 
foreign corporations. (Blanchard v. Hoboken Land & Improvement Co. 

6 Supp. 279.) 

As to the right of a municipal government to fix the maximum rates of 
ferriage. (.People v. New York, 32 Barb. 102.) 




The Highway Law of New York. 


163 


Repealing and other laws. 


ARTICLE VIII. 
Repealing and Other Laws. 


Section 180. Laws repealed. 

181. Saving clause. 

182. Construction. 

188. When to take effect. 

Schedule. 

Section 180. Laivs repealed .—Of the laws enumerated 
in the schedule hereto annexed, that portion specified in 
the last column is repealed. Such repeal shall not revive 
a law repealed by any* law hereby repealed, but shall 
include all laws amendatory of the laws hereby repealed. 

§ 181. Saving clause .—The repeal of a law, or any 
part of it specified in the annexed schedule, shall not 
effect or impair any act done, or right accruing, accrued, 
or acquired, or penalty, forfeiture, or punishment incurred 
prior to the time when this act takes effect, under or by 
virtue of the laws so repealed, but the same may be 
asserted, enforced, prosecuted, or inflicted, as fully and 
to the same extent, as if such laws had not been repealed; 
and all actions or proceedings, civil or criminal, com¬ 
menced under or by virtue of the laws so repealed and 
pending February twenty-eighth, eighteen hundred and 
ninety-one, may be prosecuted and defended to final effect 
in the same manner as they might under the laws then 
existing, unless it shall be otherwise specially provided 
by law. 

See Edsall v. Hoivell, 86 Hun, 424, as to the operation of this section in 
regard to repealing L. 1863, ch. 93. 






164 


The Highway Law of New York. 


Construction. 


§ 182. Construction .—The provisions of this chapter, 
so far as they are substantially the same as those laws 
existing on February twenty-eighth, eighteen hundred 
and ninety-one, shall be construed as a continuation of 
such laws, modified or amended, according to the langu¬ 
age employed in this chapter, and not as new enactments; 
and references in laws not repealed, to provisions of law 
incorporated into this chapter and repealed shall be con¬ 
strued as applying to the provisions so incorporated; 
nothing in this chapter shall be construed to amend or 
repeal any provision of the Penal or Criminal Code. 

§ 183. When to take effect .—This chapter shall take 
effect on the first day of March, eighteen hundred and 
ninety-one. 




The Highway Law of New York. 


165 


Schedule of laws repealed. 


SCHEDULE OF LAWS REPEALED. 

Revised Statutes, Part I, chapter 16.All 

Revised Statutes, Part I, chapter 20, title 13.All 

Laws of Chapter Sections 

1832 . 107 .All 

1833 . 149 .All 

1834 . 267 .All 

1835 . 154 .All 

1836 . 122 .AH 

i sin ....... 300 .All 

1841 ... 

.. 225 . 

.All 

1845. 

.. 180.. 

. 5, 6, 7, 9, 12, 13, 14 

1847. 

.. 455.. 

... 3, 4, 5, 6, 7, 8, 9, 11, 12, 20, 21, 22, 23 

1853. 

.. 63 . 

.All 

1853 

.. 135 . 

.All 

1853 

.. 174 . 

.All 

1S55 

.. 255 . 

.All 

1S57 

.. 383 . 

.All 

1S57 

.. 491 . 

.All 

1S57 

.. 615 . 

. 1 

1S57 

. 639 . 

.All 


51 . 

.All 


103 . 


1 SfiO 

61 . 

.All 

1 QAO 

468 . 

.All 

1 CA1 

30 . 

.All 

1 GA1 

311 . 

.All 

1 QAO 

. 243 . 

.All 

1 QAQ 

93 . 

.All 

1 QAQ 

.. 444 . 

.All 

1864. 

... 395 . 

.All 


































































166 


The Highway Law of New York 


Schedule of laws repealed. 


Laws of 

1865.. .. 

1866.. .. 

1866.... 

1868.... 

1868.... 

1869.... 

1869.... 

1869.. .. 

1870.. .. 

1872.. . 

1873.. .. 

1873.... 
1873 ... 

1873.... 

1873.... 

1873.. .. 

1874.. .. 

1874.. .. 

1875.. .. 

1875.... 

1875.. .. 

1876.. .. 

1876.. .. 

1877.. .. 

1877.. .. 

1878.. . 

1878.. .. 

1878.... 

1878.. .. 
1879 ... 

1880.. .. 

1880.... 

1880.... 

1880.... 

1881.... 

1881.... 

1881.... 


Chapter 
522 .... 
180 .... 
770 ... 
791 .... 
843 .... 
24 .... 
131 .... 
593 .... 
461 .... 
274 .... 
63 .... 
69 .... 
395 .... 
448 .... 
477 .... 
773 .... 

169. 

570 .... 
22 .... 

196 .... 
341 .... 

340. 

348 . 

197 _ 

344 .... 

44_ 

49_ 

114. 

245 .... 
67 ... 

114_ 

305 _ 

308 .... 
503 .... 
233 .... 
513 .... 
696 


Sections 

. 7 

.All 

.All 

.All 

.All 

.All 

. 1 

.All 

.All 

. 1 

.All 

.All 

.All 

.All 

.All 

.All 

.All 

.All 

.All 

.All 

.All 

.All 

.All 

.All 

.... All 

.All 

.All 

....All 

.All 

.All 

.All 

.All 

.All 

.All 

.All 

.All 

.All 















































































The Highway Law of New York. 


167 


Schedule of laws repealed. 


Laws of 
1881.... 
1883.... 
1883.... 

1883.. .. 

1884.. .. 
1884.... 
1884.... 
1884.... 

1884.. .. 

1886.. .. 
1886.... 
1886.... 
1886.... 
1887.... 
1887.... 

1887.. .. 

1888.. ., 
1888..., 
1889... 

1889.. . 

1889.. .. 


Chapter 
700 .... 
346 .... 
371 .... 
398 .... 
220 .... 
251 .... 
359 .... 
396 .... 
479 .... 
269 .... 
344 .... 
422 .... 
452 .... 
471 .... 
526 .... 
704 .... 
240 .... 
260 ..., 
120 .... 
146 ..., 
259 .... 


Sections 

.All 

.All 

... .All 

.All 

. ...All 

.All 

.All 

.All 

.All 

_ All 

.All 

.All 

.All 

.All 

.All 

.All 

.All 

.All 

.All 

.All 

.All 














































T 










APPENDIX 










































The Highway Law of New York. 


171 


General laws relating to highways. 


GENERAL LAWS RELATING TO 

HIGHWAYS. 

CONSTITUTION. 

ARTICLE I. 

§ 7. When private property shall be taken for any pub¬ 
lic use, the compensation to be made therefor, when such 
compensation is not made by the state, shall be ascer¬ 
tained by a jury, or by not less than three comimssioners 
appointed by a court of record, as shall be prescribed by 
law. Private roads may be opened in the manner to be 
prescribed by law; but in every case the necessity of the 
road and the amount of all damage to be sustained by the 
opening thereof shall be first determined by a jury of free¬ 
holders, and such amount, together with the expenses of 
the proceeding, shall be paid by the person to be bene¬ 
fited. General laws may be passed permitting the owners 
or occupants of agricultural lands to construct and main¬ 
tain for the drainage thereof, necessary drains, ditches 
and dykes upon the lands of others, under proper re¬ 
strictions and with just compensation, but no special laws 
shall be enacted for such purposes. 


ARTICLE III. 

§ 18. The legislature shall not pass a private or local 
bill in any of the following cases: 

.....*•••• 
Laying out, opening, altering, working or discontinuing 







172 


The Highway Law of New York. 


Constitution. 


roads, highways or alleys, or for draining swamps or other 
low lands. 

Granting to any corporation, association or individual 
the right to lay down railroad tracks. 

• ••••••••• 

Providing for building bridges, and chartering com¬ 
panies for such purposes, except on the Hudson river 
below Waterford, and on the East river, or over the 
waters forming a part of the boundaries of the state. 

• •••••«•*• 

But no law shall authorize the construction or operation 
of a street railroad except upon the condition that the con¬ 
sent of the owners of one-half in value of the property 
bounded on, and the consent also of the local authorities 
having the control of, that portion of a street or highway 
upon which it is proposed to construct or operate such rail¬ 
road be first obtained, or in case the consent of such prop¬ 
erty owners cannot be obtained, the appellate division of 
the supreme court, in the department in which it is pro¬ 
posed to be constructed, may, upon application, appoint 
three commissioners who shall determine, after a hearing 
of all parties interested, whether such railroad ought to be 
constructed or operated, and their determination, confirmed 
by the court, may be taken in lieu of the consent of the 
property owners. 

-f 


ARTICLE XIII. 

§ 1. Members of the legislature, and all officers, 
executive and judicial, except such inferior officers as shall 
be by law exempted shall, before they enter on the duties 
of their respective offices, take and subscribe the follow¬ 
ing oath or affirmation: “I do solemnly swear (or affirm) 






The Highway Law of New York. 


173 


Constitution. 


that I will support the constitution of the United States, 
and the constitution of the state of New York, and that I 

will faithfully discharge the duties of the office of-, 

according to the best of my ability;* ? and all such officers 
who shall have been chosen at any election shall, before 
they enter on the duties of their respective offices, take 
and subscribe the oath or affirmation above prescribed, 
together with the following addition thereto, as part 
thereof: “And I do further solemnly swear (or affirm) that 
I have not directly or indirectly paid, offered or promised 
to pay, contributed, or offered or promised to contribute 
any money or other valuable thing as a consideration or 
reward for the giving or withholding a vote at the elec¬ 
tion at which I was elected to said office, and have not 
made any promise to influence the giving or withholding 
any such vote, ,; and no other oath, declaration or test 
shall be required as a qualification for any office of public 
trust. 







174 


The Highway Law of New York. 




Selections from Code of Civil Procedure. 

—. .. . --— 

SELECTIONS FROM THE CODE OF 
CIVIL PROCEDURE. 

TITLE X. 

Action or Special Proceeding, Relating to an Animal 

Straying upon the Highway. 

Section 3082. Action against person suffering animals to stray. 

3083. Penalties to be recovered. 

3084. Certain officers to seize animals straying. 

3085. When private person may seize such animals. 

3086. Officer or person seizing to present petition. 

3087. Precept thereupon. 

3088. Id. ; how served. 

3089. Proof of service of precept. 

3090. Answer ; trial. 

3091. Decision in favor of petitioner ; warrant to sell; execution 

thereof. 

3092. Application of proceeds of sale. 

3093. Disposition of surplus. 

3094. Id. ; when no claim made within a year. 

3095. Order upon claims for surplus ; appeal therefrom. 

3096. Proceedings upon decision in favor of person answering. 

3097. Demand of possession before trial. Proceedings thereupon. 

3098. Id. ; when animal wilfully set at large by third person. 

3099. Action by owner in such case. 

3100. Action by petitioner and by officer. 

3101. Demand of possession after final order and before sale. 

3102. Order upon demand of possession ; appeal therefrom. 

3103. Id. ; stay of proceedings. 

3104. Appeal from final order. 

3105. Id. ; by claimant; stay of proceedings and delivery of 

possession. 











The Highway Law of New York. 


175 


Action against person suffering animals to stray. 

Sebtion 3106. Proceedings upon affirmance. 

3107. Limitation of action for seizing animals. 

3108. Certain actions can not be maintained. 

3109. Where several animals are trespassing, damages are entire. 

Proceedings in such cases. 

3110. Proceedings in other cases, where there are different 

owners. •' 

% 

3111. Surplus, where there are different owners. 

3112. When one action, etc., supersedes any other. 

3113. Rights of officer when private person fails to prosecute. 

3114. Persons having a special property deemed owner. 

3115. Agent may act for his principal. 

§ 3082. Action against person suffering animals 
to stray .—Any person, who suffers or permits one or 
more cattle, horses, colts, asses, mules, swine, sheep, or 
goats, to run at large, or to be herded or pastured, in a 
public street, highway, park or place, elsewhere than in 
a city, incurs thereby the penalty or penalties specified 
in the next section; and any resident of the town, or the 
officer to whom a fine or penalty is to be paid for the 
benefit of the poor, as prescribed in section 2875 of this 
act, or the overseer or superintendent of the poor of the 
town or district, in which one or more of those animals 
are found so running at large, herded, or pastured, may 
maintain an action against him, in a justice’s court, held 
in that town or district, to recover the penalty or penalties 
so incurred. Where the action is brought by a private 
person, the justice must pay the proceeds of an execution, 
issued upon a judgment therein in favor of the plaintiff, 
after deducting the costs, to the officer, who might have 
brought the action, as prescribed in this section, to be 
applied by him to the support of the poor within his town 
or district. 

§ 3083. Penalties to be recovered .—If the plaintiff 
recovers judgment, in an action brought as prescribed in 















176 


The Highway Law of New York. 


Certain officers to seize animals straying. 


the last section, the justice must award to him the follow¬ 
ing sums, by way of penalties, besides the costs of the 
action: 

1. For each horse, colt, ass, mule, swine, bull, ox, 
cow, or calf, five dollars. 

2. For each sheep or goat, one dollar. 

The entire amount of the penalties may be recovered, in 
one action, although it exceeds the sum, for which a jus¬ 
tice can render a judgment in an ordinary action. 

§ 3084. Certain officers to seize animals straying . 
—Where one or more cattle, horses, colts, asses, mules, 
swine, sheep, or goats are found running at large, or 
being herded or pastured, in a public street, highway, 
park, or place, elsewhere than in a city, the overseer of 
highways of the road district, or, if they are so found 
within an incorporated village, the street commissioner 
thereof, having personal knowledge or being notified of 
the fact, must immediately seize the animal or animals, 
and keep it or them in his possession, until disposed of as 
prescribed in the following sections of this title. 

§ 3085. When private person may seize such ani¬ 
mals. —Any person may seize one or more animals speci¬ 
fied in the last section, then running at large, or being 
herded or pastured, in a public street, highway, park, or 
place, elsewhere than in a city, bordering upon real prop¬ 
erty owned or occupied by him; or then trespassing upon 
real property so owned or occupied, having entered there¬ 
upon from such a public street, highway, park, or place. 
The person making the seizure, must keep the animal or 
animals seized, in his possession, until disposed of as 
prescribed in the following sections of this title. 

§ 3086. Officer or person seizing to present peti¬ 
tion. —An officer or other person, who seizes an animal 





The Highway Law of New York. 


177 


Precept thereupon. 


or animals, as prescribed in either of the last two sections, 
must immediately file, with a justice of the peace of the 
town in which the seizure was made, a written petition, 
verified by his oath; setting forth the facts, which bring 
the case within either of those sections; briefly describing 
the animal or animals seized; stating either the name of 
the owner, or that his name is not known to the petitioner, 
and can not be ascertained by him with reasonable dili¬ 
gence; and praying for a final order directing the sale of 
the animal or animals seized, and the application of the 
proceeds thereof, as prescribed in this title. Where the 
petition alleges, that any animal or animals seized, were 
then trespassing upon real property owned or occupied by 
the petitioner, it must state the amount of the damages, 
if any, which the petitioner has sustained thereby. In 
that case, the decision of the justice, or, where the issues 
are tried by a jury, the verdict must fix the amount of 
the damages. 

§ 3087. Precept thereupon .—Upon the presentation 
of the petitiou, the justice must issue a precept under his 
hand; directed to the owner, if his name is stated in the 
petition, or, if it is not so stated, directed generally to 
all persons having an interest in the animal or animals 
seized; briefly reciting the substance of the petition; de¬ 
scribing the animal or animals seized, and requiring the 
person or persons, to whom the precept is directed, to 
show cause before the justice, at a time and place specified 
therein, not less than ten or more than twenty days, after 
the issuing of the precept, why the prayer of the petition 
should not be granted. 

§ 3088. Id.; how served .—The precept must be served 
upon the person, to whom it is directed by his name, 
12 




178 


The Highway Law of New York. 


Proof of service of precept. 


within the same time, and in like manner as a summons 
is required to be served, as prescribed in section 2910 of 
this act. Where it is directed generally to all persons, 
having an interest in the animal or animals seized, it may 
be served by a constable of the town, or by an elector 
thereof, specially authorized so to do by a written indorse¬ 
ment upon the precept, under the hand of the justice, by 
posting a copy thereof in at least six public and conspicu¬ 
ous places in the town where the seizure was made; one 
of which places must be the nearest district school-house, 
or, if the seizure was made within an incorporated vil¬ 
lage, having schools in charge of a board of education, a 
building in which such a school is kept. Each copy 
must be posted, within two days after the precept is issued. 
Where the precept is directed to a person by his name, 
and proof is made by affidavit, to the satisfaction of the 
justice, that it cannot, with reasonable diligence, be per¬ 
sonally served upon that person, within the county, at 
least six days before the return day thereof, the justice 
may, by a written order, direct that service thereof be 
made, by posting copies thereof, at least five days before 
the return day, as prescribed in this section; in which 
case, service thereof may be made accordingly. 

§ 3089. Proof of service of precept .—At the place 
where the precept is returnable, and at the expiration of 
the time specified in section 2893 of this act, the petitioner 
must, unless the precept is directed to a person by his 
name, and he appears, furnish proof of the service of the 
precept, as prescribed in the last section. If it was served 
by a constable, either personally or by posting, his writ¬ 
ten return upon the precept is sufficient proof of the facts 
relating to the service, as stated therein. If it was served 
by a private person, proof of service must be made by 
affidavit. 






The Highway Law of New York. 


179 


Answer; trial. 


§ 3090. Answer; trial. —The owner, or a person hav¬ 
ing an interest in any animal seized, may appear upon 
the return of the precept, and thereby make himself a 
party to the special proceeding. The person so appearing 
may, upon the return of the precept, hie a written an¬ 
swer, subscribed by him or his attorney, and verified by 
oath of the person subscribing it, denying, absolutely or 
upon information and belief, one or more material allega¬ 
tions contained in the petition. His answer must also set 
forth his interest in the animal or animals seized. The 
subsequent proceedings must be the same as in an action 
in a justices’ court, wherein an issue of fact has been 
joined, except as otherwise specially prescribed in this 
title. 


§ 3091. Decision in favor of petitioner; warrant 
to sell; execution thereof. —If no person appears and 
answers, or if the decision of the justice, or the verdict of 
the jury, where the issues were tried by a jury, is in favor 
of the petitioner, the justice must make a final order, 
directing the sale of the animal or animals seized, and the 
application of the proceeds thereof, as prescribed in this 
title. Thereupon the justice must issue a warrant, under 
his hand, directed generally to any constable of the 
county, commanding him to sell the animal or animals 
seized, at public auction, for the best price which he can 
obtain therefor; and to make return thereof to the justice, 
at a time and place therein specified, not less than ten or 
more than twenty days thereafter. The sale must be 
made upon the like notice, and in like manner, as a sale 
of property, by virtue of an execution issued by a justice 
of the peace; and the constable must make return, as 
required by the warrant, and must pay the proceeds of 
the sale to the justice, deducting therefrom his fees, at 




180 


The Highway Law op New York. 


Application of proceeds of sale. 


the rate allowed by law for the collection of such an execu¬ 
tion. 

§ 3092. Application of proceeds of sale .—The justice 
must apply the proceeds of the sale as follows: 

1. He must pay the costs of the petitioner, as taxed by 
the justice, at the same rates as the costs of an action 
brought before him, including the justice's fees in such 
an action; and also the fees for the service of the precept, 
either personally or by posting, at the rate allowed by 
law for personal service of a summons by a constable. 

2. Out of the remainder of the proceeds, he may retain 
to his own use, a fee of one dollar, for each animal sold. 

3. Out of the remainder of the proceeds, he must pay to 
the officer, or other person making the seizure, the follow¬ 
ing fees, for the seizure of each animal seized and sold, 
to wit: One dollar for each horse, colt, ass, or mule; 
fifty cents for each bull, ox, cow, or calf; and twenty-five 
cents for each goat, sheep, or swine; together with a 
reasonable compensation, fixed by him, for the care and 
keeping of each animal, from the time of the seizure to 
the time of the sale; and, also, where any animal sold 
was seized, while trespassing upon real property owned or 
occupied by the petitioner, the damages sustained by the 
petitioner in consequence thereof, as ascerained by the 
decision of the justice, or the verdict of the jury upon 
which the final order was made. 

4. Out of the remainder of the proceeds, he must pay 
to the officer, to whom a fine or penalty is to be paid for 
the benefit of the poor, as prescribed in section 2875 of this 
act, the following penalties, to wit: five dollars for each 
horse, colt, ass, mule, bull, ox, cow, calf, or swine, 
seized and sold; and one dollar for each sheep or goat, 
seized and sold; which penalties must be received by the 
officer, for the benefit of the poor of his town or district. 




The Highway Law of New York. 


181 


Disposition of surplus. 


5. If any surplus remains, he must pay the same to the 
person or persons entitled thereto, as prescribed in the 
following sections of this title. 

§ 3098. Disposition of surplus .—Any person may, 
within ten days after the return of the warrant, file, 
with the justice, a written claim to the surplus of the 
proceeds of the sale, or to any part thereof. On the 
eleventh day after the return, or, if it is a Sunday or a 
public holiday, on the first day thereafter, which is neither 
Sunday nor a public holiday, the justice must proceed 
to inquire into the claims so filed; and, for the purpose 
of determining them, he must hear the allegations and 
proofs of each claimant; and he may issue subpoenas, as 
upon the trial of an action. He may, upon the applica¬ 
tion of any claimant, and for good cause shown, adjourn 
the hearing, from time to time, but not more than thirty 
days in all. After hearing the allegations and proofs of 
all the claimants, he must decide the claims, and enter 
an order accordingly. If no claim is filed; or if the right 
to the surplus money, or any part thereof, is not estab¬ 
lished, to the satisfaction of the justice, as prescribed in 
this section; any person, whose claim was not determined 
upon the hearing, may file a claim thereto, at any time 
before the expiration of a year from the return of the war¬ 
rant; and, thereupon, the justice must proceed, as pre¬ 
scribed in this section with respect to a claim filed within 
the ten days. 

§ 3094. Id.; When no 'claim made within a year .— 
If, a t the expiration of one year after the return of the 
warrant, any portion of the surplus remains, a claim to 
which has not been established to the satisfaction of the 
justice, pursuant to the provisions of the last section, the 
justice must pay it, for the benefit of the poor, to the 




182 


The Highway Law of New York. 


Order upon claim for surplus; appeal therefrom. 


officer to whom a fine or penalty is to be paid for the 
benefit of the poor, as prescribed in section 2875 of this 
act; and, thereupon, all persons are forever barred from 
any claim thereto. But if a claim, filed as prescribed in 
the last section, remains undetermined at the expiration 
of the year, the justice must determine it within ten days 
thereafter; and, for that purpose, he must retain the sur¬ 
plus in his hands until the determination. 

§ 3095. Order upon claim for surplus; appeal 
therefrom .—An appeal from an order determining a 
claim, as prescribed in the last two sections, may be taken 
to the county court, by a claimant, within ten days after 
the making of the order, as from a judgment of a justice 
in an action to recover a sum equal to the claim; and the 
proceedings thereupon are the same, except that an 
undertaking is not necessary for any purpose. Upon such 
an appeal, each other claimant, whose interest is affected 
by the order appealed from, must be made a respondent. 
If there is no such claimant, the officer entitled to the 
surplus must be made respondent; but costs cannot be 
awarded against him, unless he appears upon the appeal; 
in which case, the costs are in the discretion of the appel¬ 
late court. Where an appeal, taken as prescribed in this 
section, is perfected, the county judge may, in his dis¬ 
cretion, make an order extending the time, within which 
payment of the surplus must be made, as prescribed in 
the last section, and staying payment accordingly. 
Unless such an order is made, and a copy thereof is served 
upon the justice, payment must be made as prescribed in 
the last section, notwithstanding the appeal; and upon 
proof of the payment, the appeal must be dismissed. 
Where an appeal is taken to the supreme court, from the 
determination of the county court, the county judge, or 






The Highway Law of New York. 


183 


Proceedings upon decision in favor of person answering. 


a justice of the supreme court may make a like order, and 
with like effect. 

§ 3096. -Proceedings upon decision in favor of per¬ 
son answering *—If the decision of the justice, or the 
verdict of the jury, where the issues are tried by a jury, 
is in favor of the person answering, it must fix the value 
of each animal seized. If the justice or the jury find that 
the seizure was malicious, and without probable cause, 
the decision or verdict must assess the damages sustained 
by the person answering, by means of the seizure and 
detention. The justice must thereupon make a final 
order, awarding to the person so answering, the return of 
the animal or animals seized, or the value thereof if a 
return cannot be had; together with his costs, at the 
rates allowed by law in an action brought before him to 
recover a chattel; and, also, twice the sum assessed as 
his damages, if any. Thereupon a warrant must be issued 
by the justice to a constable, to the same effect, as an 
execution issued, in an action to recover a chattel, upon 
a judgment in favor of the defendant, where the chattel 
has not been delivered to him; and each provision of this 
chapter, relating to a judgment and an execution in such 
a case, applies to a final order made, and a warrant issued 
thereupon, as prescribed in this section. 

§ 3097. Demand of jjossession before trial; proceed¬ 
ings thereupon .—At any time after the precept is issued, 
and before the commencement of the trial, the owner of 
any animal seized may file with the justice a written 
demand of the possession thereof. Thereupon he is 
entitled to the possession, upon complying with the fol¬ 
lowing terms: 

1. He must pay to the justice, for the use of the peti¬ 
tioner, the costs of the proceedings, to the time of filing 






184 


The Highway Law of New York. 


Id.; when animal wilfully set at large by third person. 


the demand, as prescribed in subdivison first of section 
3092 of this act, and, also, the sums payable on account 
of each animal, whereof possession is so demanded, as 
prescribed in subdivison third of the same section; which 
sums must be fixed by the justice, after hearing the alle¬ 
gations and proofs of the parties. 

2. He must also pay to the justice, a fee of one dollar 
for each animal, whereof possession is so demanded. 

3. If the petitioner is an officer, to whom a fine or 
penalty is to be paid for the benefit of the poor, as pre¬ 
scribed in section 2875 of this act, the claimant must also 
pay to the justice, for the petitioner’s use, the sum 
specified therein on account of each animal, whereof 
possession is so demanded. 

4. The claimant must also prove, to the satisfaction of 
the justice, by affidavit or other competent evidence, that 
he is the owner of each animal, whereof possession is 
so demanded. Each person who has appeared must have 
notice of, and may oppose, the claim. 

§ 3098. Id.; when animal wilfully set at large by 
third person .—But where, in a case specified in the last 
section, the person filing a demand, presents therewith to 
the justice sufficient proof, by affidavit or otherwise, that 
the running at large, herding, pasturing, or trespassing, by 
reason whereof the animal or animals, of which he demands 
possession, were seized, was caused by the wilful act, 
intended to effect that object, of a person other than the 
owner; and also makes the proof specified in subdivision 
fourth of that section, he is entitled to possession, pursu¬ 
ant to his demand,upon paying to the petitioner, Or to the 
justice for his use, a reasonable sum, to be fixed by the 
justice, after hearing the allegations and proof, of the 
parties, as compensation for the care and keeping of the 
animal or animals, whereof possession is so demanded, 




The Highway Law of New York. 


185 


Action by owner in such a case. 


and without paying any other sum, specified in the last 
section. 

§ 3099. Action by owner in such a case. —The owner 
of an animal, seized in consequence of a wilful act 
specified in the last section, may recover, in an action 
against the person who committed it, all damages sus¬ 
tained by him, in consequence thereof, including the sum 
paid in order to recover possession of the animal, as pre¬ 
scribed in the last section; and, in addition thereto, the 
sum of twenty dollars for each animal seized. 

§ 3100. Action by petitioner and by officer. — Where 
the possession of an animal has been delivered, as pre¬ 
scribed in the last section but one, an action may also 
be maintained, by the petitioner in the special proceeding 
before the justice, against the person who committed the 
wilful act, to recover, in addition to all other damages sus¬ 
tained by the plaintiff in consequence of the wilful act, 
all sums, to which the plaintiff would have been entitled 
out of the proceeds of the sale, as prescribed in section 
3092 of this act, other than the compensation paid for 
the care and keeping of the animal. In the like case, if 
the petitioner is a private person, the officer, to whom 
a fine or penalty is to be paid for the benefit of the poor, 
as prescribed in section 2875 of this act, may maintain an 
action against the person, who committed the wilful act, 
to recover the penalties to which the plaintiff would have 
been entitled, out of the proceeds of the sale, as prescribed 
in that subdivision. Neither of the actions specified in 
this or the last section is affected by the pendency of, or 
the recovery of judgment in, either of the others. 

§ 3101. Demand of possession after final order 
and before sale .—A person, entitled to demand the pos- 




186 


The Highway Law of New York. 


Order upon demand of possession; appeal therefrom. 


session of an animal, as prescribed in section 3097 of this 
act, who did not appear upon the return of the precept, or 
upon the trial, may file, with the justice, a written demand 
of the possession, at any time after the final order, and 
not less than three days before the time appointed for the 
sale; and, thereupon, he is entitled to the possession, upon 
complying with the following terms: 

1. He must furnish, by affidavit or other competent evi¬ 
dence, a sufficient excuse, to the satisfaction of the justice, 
for his failure to appear. 

2. He must, in all respects, comply with the provisions 
of section 3097 of this act; except that it is necessary for 
him to pay only one-half of the justice’s fee, as prescribed 
in subdivision second of that section; and one-half of the 
fees payable to the petitioner, for the seizure of each an¬ 
imal, as prescribed in subdivision third of section 3092 of 
this act. 

§ 3102. Order upon demand of possession; appeal 
therefrom .—Where a demand for the return of the pos¬ 
session of an animal is filed, as prescribed in either of the 
last five sections, the justice must, at the request of either 
party thereto, make, and enter in his minutes, an order 
determining the same. An appeal from such an order 
may be taken to the county court, by the person making 
the demand, or by either party to the special proceeding, 
at any time before the final order in the special proceeding 
is made; and each person or party so entitled to appeal, 
must be made a respondent upon an appeal taken by one 
of the others. The appeal must be taken in like manner, 
as an appeal from a judgment of the justice in an action 
to recover a chattel; and the proceedings thereupon are the 
same, except as otherwise prescribed in the next section. 


3103. Id,; stay of proceedings .—An appeal from 




The Highway Law of New York. 


187 


Appeal from final order. 


an order, specified in the last section, is not effectual for 
any purpose, unless the appellant procures from the county 
judge an order, directing a stay of the proceedings upon 
the petition, and a stay of the execution of the order ap¬ 
pealed from, and files it with the justice, within the time 
allowed for the appeal. The order may be granted or 
refused, in the discretion of the county judge, or granted 
upon such terms, as to security or otherwise, as he thinks 
proper; and it may be vacated or modified, either abso¬ 
lutely, or unless further security is given, in his discretion. 

§ 3104. Appeal from, final order .—Within ten days 
after a final order upon a petition is made, as prescribed 
in this title, an appeal therefrom may be taken by the 
petitioner, or by the person answering, in like manner as 
an appeal from a judgment of the justice in an action to 
recover a sum of money, equal to the value of the animal 
or animals, and the proceedings thereupon are the same, 
except as otherwise prescribed in the next section. 

§ 3105. Id.; by claimant; stay of proceedings and 
delivery of possession. —An appeal from a final order, 
taken, as prescribed in the last section, by the person 
answering, is not effectual for any purpose, unless the ap¬ 
pellant files, with the notice of appeal, an order of the 
county judge, or, if he is absent from the county, of a jus¬ 
tice of the supreme court, reciting that the appeal has been 
perfected, and that security has been given thereupon, as 
prescribed in this section, and directing a stay of proceed¬ 
ings upon the final order appealed from, and that the pos¬ 
sesion of the animal or animals seized be delivered to the 
appellant. The order can be made only where an under¬ 
taking is given by the appellant, as required for the pur¬ 
pose of perfecting an appeal from a judgment, and staying 
the execution thereof; and also au undertaking, in the same 




188 


The Highway Law of New York. 


Proceedings upon affirmance. 


or another instrument, to the effect that, if the final order 
appealed from is affirmed, or if the appeal is dismissed, 
the appellant will pay all sums which the justice awards 
against him, upon the hearing after the determination 
of the appeal, as prescribed in the next section, not exceed¬ 
ing a sum specified therein; which must be, at least, twice 
the amount of all the sums, which might be deducted from 
the proceeds of the sale, as prescribed in section 3092 of 
this act. The sum must be fixed, and the undertaking 
must be approved, by the judge who grants the order. 
Upon filing the order with the justice, the appellant is 
forthwith entitled to the possession of the animal or amimals 
seized. 

§ 3106. Proceedings upon affirmance .—If the final 
order appealed from is affirmed, upon an appeal taken by 
the person answering, the county court must appoint a 
time and place, at which the justice must fix the sums 
payable by the appellant, pursuant to his undertaking. 
The justice may adjourn the hearing to another place, and 
to another time, not exceeding three days after the time so 
appointed. The justice must fix the sum so payable, as 
if a warrant for the sale of the animals seized had been re¬ 
turned, and the proceeds thereof paid to him by the con¬ 
stable, as prescribed in section 3092 of this act. The 
undertaking upon the appeal enures to the benefit of each 
officer, to whom any sum is payable, as prescribed in that 
section; and with respect to any of those sums, the respon¬ 
dent is a trustee for the officer entitled thereto. 

§ 3107. Limitation of action for seizing animals. 
—Where an animal is seized, upon the ground that it was 
running at large, or was being herded or pastured, or was 
trespassing, contrary to the provisions of this title; and 
the officer or other person making the seizure, immediately 




The Highway Law of New York. 


189 


- Certain actions can not be maintained. 


files his petition, and diligently prosecutes the same, as 
prescribed in this title; an action to recover the animal so 
seized, or to recover damages for the seizure, or for any 
act subsequent thereto, must be commenced within one 
year after the cause of action accrues. 

§ 3108. Certain actions can not he maintained .— 
A person, to whom the precept was directed by his name, 
and who was personally served therewith, or a person who 
has appeared and answered in the special proceeding, or 
demanded the return of any animal seized, can not main¬ 
tain an action against the officer or other person seizing an 
animal, or a person acting by his command, or in his aid, 
in a case specified in the last section. But, except as 
specified in this section, the owner of an animal seized or 
detained, under color of any provision of this title, may 
maintain an action to recover the animal, or its value, or 
damages, for the seizure or detention, or for any unlawful 
act subsequent thereto, if, in fact, the animal was not, at 
the time of the seizure, running at large, or being herded 
or pastured, or trespassing, as the case may be, as specified 
in the foregoing provisions of this title. 

§ 3109. Where several animals are trespassing, 
damages are entire . Proceedings in such cases .—For 
the purpose of determining the damages sustained by the 
petitioner, where two or more animals are found simul¬ 
taneously trespassing upon real property, owned or occu¬ 
pied by him, all the damage done by all the animals seized, 
is to be regarded as done by them jointly; and the petition¬ 
er’s remedy therefor is entire, and must be enforced against 
all the animals, and the proceeds of the sale thereof. 
Where different persons, who are known, own different 
animals seized, the precept must be directed to all of them 
by their names. If one or more of the owners are known, 





190 


The Highway Law of New York. 


Proceedings in other cases, where there are different owners. 


and the others are unknown, and can not be ascertained 
with reasonable diligence, the precept must be directed to 
each known owner, by his name, and, also generally to all 
persons having an interest in those animals, the owners of 
which are unknown. In a case specified in this section, a 
demand of the possession of an animal seized can not be 
made, as prescribed in section 3097 or 3101 of this act, 
unless it is made with respect to all the animals seized, and 
by persons entitled to the possession of all of them. But 
a separate demand may be made, as prescribed in section 
3098 of this act, by each owner of one or more animals 
seized; in which case, if possession is delivered to him, as 
prescribed in that section, the petitioner’s remedy for his 
damage is the same, with respect to the animal or animals, 
of which possession is not so delivered, and against the 
proceeds of the sale thereof, as if those, whereof possession 
is so delivered, had not been trespassing upon the property. 

§ 3110. Proceedings in other cases, where there are 
different owners .—Where the petitioner does not allege, 
that the animals seized, were trespassing upon real prop¬ 
erty owned or occupied by him, and different persons own 
different animals seized, a seperate special proceeding may 
be instituted, as prescribed in this title, against each owner, 
or against any two or more owners, with respect to the 
animals owned by him or them. Or the proceedings may 
be taken against all the owners jointly; in which case, 
each person to whom the precept is directed by his name, 
and each person having an interest in an animal seized, 
has the same right to demand the possession of the animal 
owned by him, and the same right to answer separately, 
as if the special proceeding was against him separately; 
and the final order may be in favor of one or more of the 
persons so answering, with respect to the animal or 
animals owned by him or them, and for his or their costs; 




The Highway Law of New York. 


191 


Surplus where there are different owners. 


and against the remainder of the persons answering, or to 
whom the precept was directed, or for the sale of the re¬ 
mainder of the animals, in like manner, as if the former 
persons had not answered, or had not been named in the 
precept. But the person, first making a demand of the 
possession of any animal seized, must pay all the costs to 
the time of the demand; and a person, subsequently mak¬ 
ing a demand, is excused from the payment of any costs, 
except those which have accrued since the former demand. 

§ 3111. Surplus where there are different owners. 
—Where proceedings are taken jointly against different 
persons, who own different animals seized, as prescribed 
in either of the last two sections, the surplus, remaining 
in the justice’s hands, must be distributed between them, 
in proportion to the value of the animals owned by each, 
to be determined by the justice. Any owner may claim 
separately his proportion of the surplus; and sections 3093 
and 3094 of this act apply to a claim made, and to the dis¬ 
position of the surplus arising, as prescribed in this sec¬ 
tion. 


§ 3112. When one action, etc.; Supersedes any other. 

_Where two or more persons, or an officer and a private 

person, are authorized, by this title, to bring an action, or 
to seize an animal, and take the proceedings prescribed in 
this title for the disposition thereof, the commencement of 
an action, or the seizure of the animal, by either of them, 
supersedes the right of any of the others to bring such an 
action, or to make such a seizure, with respect to the ani¬ 
mal seized, or in question in the action. But the justice 
may, in his discretion, allow an officer or other person 
who'is interested in the recovery, or in the application of 
the proceeds of the sale, to appear in the action or special 
proceeding, for the purpose of protecting his interest, and 




192 


The Highway Law of New York. 


Rights of officer when private person fails to prosecute. 


to take such part in the proceedings therein as the justice 
thinks proper. 

§ 3113. Hights of officer when private person fails 
to prosecute, —Where a seizure is made by a private per¬ 
son, as prescribed in this title, and the possession of an 
animal seized is abandoned by him, without filing a peti¬ 
tion; or where an action, brought by a private person, as 
prescribed in this title, is settled or discontinued by the 
plaintiff; the officer, to whom a penalty is payable, as 
prescribed in section 3083 of this act, or in subdivision 
fourth of section 3092 of this act, may, unless he has 
assented to the abandonment, settlement, or discontinu¬ 
ance, maintain an action against the owner of the ani¬ 
mal in question, to recover the penalty so payable to him; 
and, upon proof of the facts, which would have entitled 
the plaintiff in the former action, or the petitioner in the 
special proceeding, to recover, he is entitled to judgment 
accordingly. 

§ 3114. Person having a special property deemed 
owner, —Where a person is, at the time of the seizure, 
entitled to the possession of an animal, as against the 
general owner thereof, by virtue of a special property 
therein, he is deemed, for all the purposes of this title, the 
owner thereof. 

§ 3115. Agent may act for his principal, —The duly 
authorized agent of the owner or person entitled to the 
possession of an animal, as specified in the last section, 
may, in his own name, answer, make any demand, or take 
any other proceeding, which the owner or person so en¬ 
titled may take, as prescribed in this title. 





Tiie Highway Law of New York. 


193 


\ 


County law. 


COUNTY LAW. 


§ 12. General potvers .—The board of supervisors 
shall: 

7. Make such laws and regulations as they may deem 
necessary for the destruction of wild and noxious animals 
and weeds, within the county. 

(§§ 60-80 do not apply to bridges on the Hudson River below Waterford 
or on the East River, or on waters forming boundaries of the State.) 


§ 61. County highways and, bridges .—A board of 
supervisors shall, on the application of twenty-five resi¬ 
dent tax-payers, when satisfied that it is for the interest of 
the county, lay out, open, alter, or discontinue a county 
highway therein, or cause the same to be done, and con¬ 
struct, repair, or abandon a county bridge therein, or 
cause the same to be done, when the board shall deem the 
authority conferred on commissioners of highways in¬ 
sufficient for that purpose, or that the interests of the 
county will be promoted thereby. All expenses so in¬ 
curred shall be a county charge. Such powers shall not be 
exercised unless the applicants therefor shall prove to the 
board the service of a written notice, personally or by 
mail, on a commissioner of highways of each town in the 
county, at least twelve days prior to the presentation of 
such application, specifying therein the object thereof; and 
when the application is to lay out a highway, or construct 
a bridge, the route or location thereof; and in all other 
cases, a designation of the highway or bridge to be affected 

thereby. 

13 




194 


The Highway Law of New York. 


Location and construction of bridges. 


§ 62. Location and construction of bridges .—The 
board may authorize the location, change of location and 
construction of any bridge, applied for by any town or 
towns, jointly, or by other than a municipal corporation, 
created under a general law, or by any corporation or in¬ 
dividual for private purposes; and if a public bridge, 
erected other than by a municipal corporation, establish 
the rates of toll for crossing such bridge; but if such bridge 
is to cross a navigable stream, provision shall be made in 
the resolution or permission authorizing the same, for the 
erection and maintenance of a suitable draw, to prevent 
any obstruction of the navigation of such stream; and if a 
private bridge, provision shall be made that the draw shall 
be kept open as may be required to permit all vessels to 
pass without loss of headway. When such bridge shall 
be intersected by the line of counties, the action of the 
board of supervisors of each county shall be necessary to 
give the jurisdiction herein permitted. But this section 
shall not apply to a pier bridge erected or to be erected 
over the Mohawk river above the state dam by a cor¬ 
poration organized under the transportation corporations 
law, provided such corporation shall comply with all the 
provisions of said transportation corporations law appli¬ 
cable thereto; such a corporation, without further proceed¬ 
ing, shall have the right to erect and maintain piers in 
said river for the purposes of such a bridge. 

Amended by L. 1895, eh. 225. 


§ 63. County aid to towns for the construction and 
repair of bridges, —If the board of supervisors of any 
county shall deem any town in the county to be unreason¬ 
ably burdened by its expenses for the construction and re¬ 
pair of its bridges, the board may cause a sum of money, 
not exceeding two thousand dollars in any one year, to be 




The Highway Law of New York. 

Construction by county of destroyed bridges. 


195 


raised by the county and paid to such town to aid in de¬ 
fraying such expenses. 

§ 64. Construction by county of destroyed bridges . 
—If any bridge within a county, or intersected by any 
boundary line of a county, shall be destroyed by the ele¬ 
ments, and the board of supervisors of the county shall 
deem that the expenses of the construction of a new bridge 
at or near the site of the bridge so destroyed would be too 
burdensome upon the town or towns within such county, 
which would otherwise be liable therefor, the board of 
supervisors of any such county may provide for the con¬ 
struction and completion of a bridge and all necessary 
approaches thereto, at or near the site of the bridge so 
destroyed. If the bridge so destroyed shall have been con¬ 
structed by a corporation created under a general law, and 
the site thereof, and of the approaches thereto, or either, 
shall be the property of such corporation, such board of 
supervisors may purchase the interest of such corporation, 
or any other person, in such site or approaches, if such 
purchase can be accomplished upon reasonable terms; but 
if such site or approaches can not be lawfully acquired by 
such purchase, or otherwise, upon reasonable terms, such 
board may acquire title to premises on either side of such 
site, and provide for the construction of a bridge and 
approaches thereto, at such place, at the expense of the 
county, or of the two counties jointly, as the case may be, 
provided such bridge shall be so located as not to increase 
the distance to be traveled upon the highway to reach each 
end of such bridge more than five rods. Any board of 
supervisors providing for the construction of any such 
bridge may determine by resolution whether the expenses 
of the maintenance and repair thereof shall thereafter be a 
county charge, or a charge upon such town or towns. 





196 


The Highway Law of New York. 


Apportionment of expenses. 


§ 65. Apportionment of expenses when a bridge is 
intersected by town or county lines .—If any public 
free bridge, intersected by the boundary line of a county, 
shall also be intersected by the boundary line of two or 
more towns in such county, the board of supervisors of 
such county shall apportion as it shall deem equitable, be¬ 
tween such towns, their respective shares of the expenses 
of the construction, maintenance and repair of such bridge, 
and the amount to be received by each town, of the money 
raised by the county to be paid toward defraying the ex¬ 
penses of constructing and repairing such bridge. 

§ 66. County’s share of expenses to be raised and 
paid to the commissioners of highways of the 
towns .—The board of supervisors shall cause to be raised 
and collected the amount to be paid by the county to any 
town toward the expenses of a bridge and when collected 
the same shall be paid to the commissioners of highways 
of the town, to be applied by them toward the payment of 
such expenses. 

§ 67. May authorize a town to construct a bridge 
outside of a boundary line .—The board of supervisors 
of any county may authorize any town, on a vote of a 
majority of the electors thereof voting at a regular town 
meeting, to appropriate a sum, or pledge its credit, to aid 
in, or wholly construct and maintain a bridge outside the 
boundaries of the town or county, or from or within the 
boundary line of any town into another town or county, 
but forming a continuation of highways leading from such 
town or county, and deemed necessary for the public con¬ 
venience. 

§ 68. Bridges over county lines.—The board shall 
provide for the care, maintenance, preservation and repair 





The Highway Law of New York. 


197 


Bridges over county lines. 


of any draw or other bridge intersecting the boundary line 
of counties or towns, and which bridge is by law a joint 
charge on such counties or towns, or on the towns in 
which it is situated; and to severally apportion, as it may 
deem equitable, the expense thereof on the towns respec¬ 
tively liable therefor, or on the respective counties when 
liable; but when such bridge shall span any portion of 
the navigable tide-waters of this state, forming, at the 
point of crossing, the boundary line between two counties, 
such expense shall be a joint and oqual charge upon the 
two counties in which the bridge is situated, and the board 
of supervisors in each of such counties shall apportion 
such expense among the several towns and cities in their 
respective counties, or upon any or either of such towns 
and cities, as in their judgment may seem proper; and if 
there be in either of said counties, a city, the boundaries 
of which are the same as the boundaries of the county, 
then it shall be the duty of the common council of such 
city, to perform the duty hereby imposed upon the boards 
of superivsors; but no town or city not immediately ad¬ 
jacent to such waters, at the points spanned by said bridge, 
shall be liable for a larger proportion of such expense than 
the taxable property of such town or city bears to the 
whole amount of taxable property of such county. The 
board of supervisors of such counties or in any city em¬ 
bracing the entire county, and having no board of super¬ 
visors, the common council shall have full control of such 
bridges. No such bridge shall be constructed unless the 
board of superivsors in each of such counties, and the com¬ 
mon council of the city whose boundaries are the same as 
the boundary of the other county adjacent to such waters, 
shall first by resolution determine that such bridge is 
necessary for public convenience, in which case such 
common council, with the consent of the mayor, may 
authorize the issue of bonds for the purpose of construct- 







198 


The Highway Law of New York. 


Authorize towns to borrow money. 


ing such bridge, to be issued as other bonds are issued in 
said city. Whenever any bridge now spanning any such 
navigable tide-waters or hereafter erected across any such 
navigable tide-waters shall be condemned by the United 
States authorities as an obstruction to navigation, and 
shall be ordered removed, the county and city authorities 
having charge of such bridge, if they shall determine that 
such bridge shall be rebuilt, shall, as soon as practicable 
after such determination, cause plans to be prepared for 
the erection of the new bridge and the removal of any 
bridge so condemned as aforesaid, and within a reason¬ 
able time after the approval of any such plans by the 
United States authorities, the proper officers shall proceed 
with the construction of said new bridge. In case of any 
unreasonable delay on the part of the officer or officers 
charged with the duty of construction of such new bridge, 
such duty may be enforced by mandamus upon the appli¬ 
cation of any citizen interested in its performance. 

Amended by L. 1896, ch. 995. 


§ 69. Authorize tow ns to borrow money ,—The board 
may, upon the application of any town liable or to be 
made liable to taxation in whole or in part for construct¬ 
ing, building, repairing or discontinuing any highway or 
bridge therein or upon its borders, pursuant to a vote of 
a majority of the electors of any such town at an annual 
town meeting, or special town meeting, called for that 
purpose, or upon the written request of the commissioners 
of highways and town board of such town or towns, au¬ 
thorize such town or towns to construct, build, repair or 
discontinue such highway or bridge, and to borrow such 
sums of money for and on the credit of such town or 
towns, as may be necessary for that purpose, and to lay 
out, widen, grade, discontinue or macadamize such high- 





The Highway Law of New York. 


199 


The raising and expenditure of moneys. 


way, or to purchase for public use any plankroad, turn¬ 
pike, tollroad or tollbridge in such town or towns, and 
may authorize the company owning the same to sell the 
same, or any part thereof or the franchises thereof, or to 
pay any debt incurred in good faith by or in behalf of such 
town or towns for such purposes. If such highway or 
bridge shall be situated in two or more towns in the same 
county, the board shall apportion the expenses among 
such towns in such proportion as shall be just. But in 
the county of Queens a vote of a majority of the electors 
of any such town or towns, voting at an annual town 
meeting, or special town meeting called for that purpose, 
must first be obtained before the board can authorize such 
town or towns to borrow any money for, or on the faith 
and credit of such town or towns for the purpose above 
mentioned. 

Amended by L. 1894, ch. 163, and by L. 1896, ch. 178. 


§ 70. The raising and expenditure of moneys .— 
The board shall, from time to time, impose upon the tax¬ 
able property of such towns sufficient tax to pay such obli¬ 
gations as they shall become due. The supervisor and 
town clerk shall each keep a record, showing the date and 
amount of the obligations issued, the time and place of 
their payment, and the rate of interest thereon. The obli- 
igations shall be delivered to the supervisor of the town, 
who shall dispose of the same for not less than par, and 
pay the proceeds thereof to the commissioners of high¬ 
ways of the town, or to such other officer as shall be des¬ 
ignated by the board of supervisors, to be used by them 
for the purposes for which the same were appropriated; 
but not more than five hundred dollars of such proceeds 
shall be expended upon any highway or bridge, except in 
pursuance of a contract made by a contractor with the 





200 


The Highway Law of New York. 


Streets outside of city limits. 


commissioners of highways of the town, or other officer 
designated by the board of supervisors, and approved by 
the town board, no member of which shall be interested 
therein. If such highway or bridge shall be wholly or 
partly within the limits of an incorporated village, the con¬ 
sent of a majority of the trustees of such village shall be 
necessary for the action of the board of supervisors as 
herein provided. 

§ 71. Streets outside of city limits .— When any terri¬ 
tory in a county containing an incorporated city of one 
hundred thousand inhabitants, excepting the towns of 
Flatbush and New Lots in the county of Kings, has been 
mapped into streets and avenues, pursuant to law, the 
board of supervisors may authorize the establishment of a 
plan for the grade of such streets and avenues, laying out, 
opening, grading, constructing, closing and change of line 
of any one or more of them, and provide for the assess¬ 
ment on property intended to be benefited thereby, and 
fixing assessment districts therefor, aud of the levy, col¬ 
lection and payment of the amount of damages sustained 
and the charges and expenses incurred, or which may be 
necessary to incur in carrying out such provisions, but 
such last named power in regard to laying out, opening, 
grading, constructing and change of line, of such streets 
or avenues or defraying the expenses thereof, shall only 
be exercised on the petition of the property owners, who 
own more than one-half of the frontage on any such street 
or avenue, or on a certificate of the town board and com¬ 
missioners of highways of the town, that the same is, in 
their judgment, proper and necessary for the public 
interest. If the streets and avenues, in respect to which 
such action is proposed to be taken, shall lie in two or 
more towns, a like certificate shall be required of the 
town board and commissioners of highways of each town. 




The Highway Law of New York. 


201 


Survey and records of highways. 


Before making such certificate, such town board, or boards 
and commissioners of highways, shall give ten days' 
notice by publication in one of the daily papers of the 
county, and by conspicuously posting in six public places 
in each of such towns, of the time and place at which 
they will meet to consider the same, at which meeting the 
public, and all persons interested, may appear and be 
heard in relation thereto. No such street or avenue shall 
be laid out, opened or constructed, upon or across any 
lands acquired by the right of eminent domain, and held 
in fee for depot purposes by any railroad corporation, or 
upon or across any lands now held by a corporation formed 
for the purpose of improving the breed of horses, without 
the consent of such corporations. No town officer shall 
charge anything for his services under this section, nor shall 
any charge be made against any such town or the property 
therein, for the expense of the publication of the notice 
herein required. 


§ 72. Survey and records of highways .—The board 
may authorize and direct the commissioners of highways 
of any town, to cause a survey to be made, at the expense 
of the town, or* any or all of the highways therein, and 
to make or complete a systematic record thereof, or to re¬ 
vise, collate and rearrange existing records of highways, 
and correct and verify the same by new surveys and to 
establish the location of highways by suitable monuments. 
Such records so made, or revised, corrected and verified 
shall be deposited with the town clerk of the town, and 
shall thereafter be the lawful records of the highways 
which they describe; but shall not affect rights pending in 
any judicial proceeding commenced before the deposit of 
such revised records with the town clerk. 


* So in the original. 





202 


The Highway La ay of INTeav York. 


Regulation of toll rates. 


§ 73. 'Regulation of toll rates .—Such boards shall 
have power, by a vote of tAVO-thirds of all the members 
elected to authorize an alteration, reduction or change of 
the rates of toll charged or received by any turnpike, 
plank or gravel road, or other toll road within such county, 
or by any bridge company or ferry within such county, or, 
if Avithin more than one county, then by joint action Avith 
the supervisors of such counties, provided such alteration 
shall be asked for by the directors, trustees or OAvners of 
such road, bridge or ferry; but that no increase of toll shall 
be so authorized unless notice of intention to apply for 
such increase shall have been published in each of the 
newspapers published in such county, once in each week 
for six successive weeks next before the annual election of 
supervisors in such county; and any alteration in rates of 
toll authorized by any board of supervisors may be changed 
or modified by any subsequent board, on their oavu motion, 
by alike vote of two-thirds of all the members elected to 
such board; but nothing herein contained shall affect or 
abridge the powers of any city. 


§ 74. Highways in counties of more than 300,000 
acres of unimproved land* —The board may establish 
separate highway districts in counties containing more 
than three hundred thousand acres of unimproved unoccu¬ 
pied forest lands, for the purpose of constructing highways 
through such lands; such highway districts to be estab¬ 
lished upon the application of the owners of more than one- 
half of the non-resident lands therein. Any such highway 
district shall consist of contiguous tracts or parcels of land, 
and may include parts of one of* more towns; and they 
may be changed, altered or abolished at any time by the 
board. Such board may appoint one or more commission- 


* So in the original. 





The Highway Law of New York. 


203 


Appropriation of non-resident taxes. 


ers to lay out and construct such highways in any such 
district, and prescribe the powers and duties, and direct 
the manner in which highway taxes shall be assessed, 
levied and collected upon the lands within the district, and 
the manner of expenditure thereof. 

They may also authorize such commissioners to borrow 
money on such terms as they may deem just, but not ex¬ 
ceeding the amount of ten years’ highway taxes upon such 
lands; and may, for the purpose of repaying such loan, 
set apart and appropriate the highway taxes upon such 
lands, for a period not exceeding ten years from the time 
of making such loan. 

§ 75. Appropriation of certain non-resident high¬ 
way taxes. —The board may, upon the application of the 
owners representing a majority in value, as shall be ascer¬ 
tained from the last annual assessment-roll of the real 
estate lying along the line of any highway, laid out 
through unimproved lands, in the cases not provided for 
in the last preceding section authorize the appropriation 
of the non-resident highway tax on the lands lying along 
such line, for the improvement of such highways. 

§ 76. Balance of state appropriations.— The board 
may direct the expenditure of any non-resident highway 
or bridge tax, set apart by an act of the legislature, in 
counties wherein such non-resident lands are situated, 
when the official life of commissioners appointed to receive 
and expend such taxes has expired. 

§ 77. Alteration of state roads.— The board may 
authorize the commissioners of highways of any town in 
their county to alter or discontinue any road or highway 
therein, which shall have been laid out by the state under 




204 


The Highway Law of New Yoek. 


Powers in certain counties. 


the same conditions that would govern their actions in 
relation to highways that have been laid out by local 
authorities. 

§ 78. Farther powers .—The board may make such 
other local and private laws and regulations concerning 
highways, alleys, bridges and ferries within the county, 
and the assessment and apportionment of highway labor 
or taxes therefor, not inconsistent with law, as it may 
deem necessary and proper, when the purposes of such laws 
and regulations can not be accomplished under the fore¬ 
going provisions, or general laws of the state. 

§ 79. Fowers in certain counties .— In counties 
wherein the aggregate amount of money expended by the 
county and towns within the county, for the improvement 
of public roads by macadamizing or paving, exceeds the 
sum of five hundred thousand dollars, the board of 
supervisors may enact local and private laws regulating 
the width of tires on wagons built to carry a weight of 
twenty-five hundred pounds or upwards, and may provide 
penalties for the violation thereof, provided, however, that 
such local laws shall not apply to pleasure vehicles, or 
carriages, or to wagons coming from adjacient cities or 
counties, nor to any city within the county. 

Added by L. 1894, ch. 644. 

§ 80. Boards of supervisors shall have power to provide 
for the use of abandoned turnpike, plank or macadamized 
roads within any town as public highways; but jurisdic¬ 
tion in such a case shall not be exercised without the assent 
of two-thirds of all the members elected to such board, to 
be determined by yeas and nays, which shall be entered 
on its minutes. 


Added by L. 1895, ch. 756. 




The Highway Law of New York. 


205 


Town law. 


TOWN LAW. 


§ 12. Election of officers .—There shall be elected at 
the biennial town meeting in each town by ballot, 

. . one, or three commissioners of highways, . . . 

At town meetings held at the same time as general 
elections, the names of all candidates for town offices 
shall be voted for in the same manner and on the same 
ballot as candidates for other offices voted for thereat. At 
such town meetings no person shall be allowed to vote for 
candidates for town offices who is not registered and 
entitled to vote at such general election. 

Amended by L. 1893, ch. 344, by L. 1897, ch. 481, and by L. 1898, ch. 363, 

See L. 1898, ch. 474, post, as to the election of highway commissioners 
in the years 1898, 1899, 1900 and thereafter. 

§ 13. Term of office .— . . . commissioners of 

highways, . . . when elected, shall hold their 

respective offices for two years. But whenever there 
is or shall be a change in the time of holding town 
meetings in any town, persons elected to such offices 
at the next biennial town meeting after such change 
shall take effect, shall enter upon the discharge of 
their duties at the expiration of the term of their prede¬ 
cessors, and serve until the next biennial town meeting 
thereafter or until their successors are elected and have 
qualified. Whenever the time for holding town meetings 
in any town is changed to the first Tuesday after the first 
Monday in November, the town officers elected thereat 
shall take office on the first day of January succeeding 
their election. 

Amended by L. 1893, ch. 344, by L. 1897, ch. 481, and by L. 1898, ch. 363. 

§ 15. Commissioners of highways.—The electors of 
each town may, at their biennial town meetings, deter- 




206 


The Highway Law of New York. 


Fence viewers. 


mine by ballot whether there shall be elected in their town 
one or three commissioners of highways. Whenever any 
town shall have determined upon having three commis¬ 
sioners of highways and shall desire to have but one, the 
electors thereof may do so by a vote by ballot taken at a 
biennial town meeting, and when such proposition shall 
have been adopted no other commissioner shall be elected 
or appointed until the term or terms of those in office at 
the time of adopting the proposition shall expire or become 
vacant; and they may act until their terms shall severally 
expire or become vacant as fully as if three continued in 
office. When there shall be but one commissioner of high¬ 
ways in any town, he shall possess all the powers and dis¬ 
charge all the duties of commissioners of highways as pre¬ 
scribed by law. 

Amended by L. 1895, ch. 239, and by L. 1897, ch. 431. 

§ 21. Fence viewers. — The assessors and commis¬ 
sioners of highways elected in every town shall, by virtue 
of their offices, be fence viewers of their town. 

Renumbered by L. 1897, ch. 481. 

§ 22. Fewers of biennial town meetings. — The 
electors of each town may, at their biennial town meeting: 

• •••• • • • • a 

5. Make provisions and allow rewards for the destruc¬ 
tion of noxious weeds and animals, as they may deem 
necessary, and raise money therefor. 

Amended by L. 1897, ch. 481. 

§ 23. Special town meetings. —Special town meetings 
shall also be held whenever twenty-five taxpayers upon 
the last town assessment-roll shall, by written application 
addressed to the town clerk require a special town meeting 
to be called, for the purpose of raising money for the sup¬ 
port of the poor; or to vote upon the question of raising and 




The Highway Law of New York. 


207 


Electors in incorporated village not to vote on highway questions. 


appropriating money for the construction and maintenance 
of any bridges which the town may be authorized by law 
to erect or maintain; or for the purpose of determining in 
regard to the prosecution or defsnse of actions, or the 
raising of money therefor; or to vote upon any proposition 
which might have been determined by the electors of the 
town at the last annual town meeting, but was not acted 
upon thereat; or to vote upon or determine any question, 
proposition or resolution which may lawfully be voted upon 
or determined at a special town meeting. Special town 
meetings may also be held upon the like application of 
the supervisor, commissioners of highways, or overseers 
of the poor, to determine questions pertaining to their 
repsective duties as such officers, and which the electors of 
a town have a right to determine. An application and 
notice heretofore made and given for a special town meet¬ 
ing to be hereafter held for a purpose not heretofore 
authorized by law, but now authorized by law, shall be as 
valid and of the same force and effect as if such purpose 
had been authorized by law at the time of such application 
and notice. 

Amended by L. 1894, ch. 280. 


§ 36. Balloting; electors in incorporated village 
when not to vote on highway questions .—When the 
electors vote by ballot, except in towns where the 
biennial town meetings are held at the time of gen¬ 
eral elections, all the officers voted for shall be named 
in one ballot, which shall contain written or printed, 
or partly written or partly printed, the names of the per¬ 
sons voted for, and the offices to which such persons are 
intending to be elected, and shall be delivered to the pre¬ 
siding officers so folded as to conceal the contents, and 
shall be deposited by such officers in a box to be con¬ 
structed, kept and disposed of, as near as may be, in the 




208 


The Highway Law of New Yoke. 


Oath of office. 


manner prescribed in the general election law. When any 
town shall have within its limits an incorporated village, 
constituting a separate road district, exempt from the 
supervision and control of the commissioners of highways 
of the town, and from payment of any tax for the salary 
or fees of said commissioners, and from payment of any 
tax for the opening, erection, maintenance and repair of 
any highway or bridge of said town, without the limits of 
said village, no residents of such village shall vote at 
any biennial or special election in such town for any com¬ 
missioner of highways for said town, nor for or against 
any appropriation for the opening, laying out, mainten¬ 
ance, erection or repair of any highway or bridge in said 
town, without the limits of said village. At the biennial 
elections in such towns, the names of candidates for the 
office of highway commissioner shall be printed on a 
different ballot from the one containing the names of candi¬ 
dates for other town offices. Such ballots shall be in¬ 
dorsed “commissioner of highways,” and shall be de¬ 
posited, when voted, in a separate ballot box, which also 
shall be marked “commissioner of high ways.” Such bal¬ 
lots and ballot box shall be furnished by the officers now 
charged by law with that duty at town elections. A poll 
list shall be kept by the clerk of the meeting on which 
shall be entered the name of each person voting by ballot. 

Amended by L. 1895, ch. 262, by L. 1897, ch. 481, and by L. 1898, ch. 
362. 

§ 51. Oath of office .—Every person elected or ap¬ 
pointed to any town office, except justice of the peace, 
shall before he enters on the duties of his office, and 
within ten days after he shall be notified of his election or 
appointment, take and subscribe before some officer 
authorized by law to administer oaths in his county, the 
constitutional oath of office, and such other oath as may 
be required by law, which shall be administered and certi- 




The Highway Law op New York. 


209 


Refusal to serve as overseer of highways. 


fled by the officer taking the same without reward, and 
shall within eight days be filed in the office of the town 
clerk, which shall be deemed an acceptance of the office; 
and a neglect or omission to take and file such oath, or 
a neglect to execute and file, within the time required by 
law, any official bond or undertaking, shall be deemed a 
refusal to serve, and the office may be filled as in case of 
vacancy. 

§ 55. JEtefusal to serve as overseer of highways or 
pound-master .—If any person chosen or appointed to 
the office of overseer of highways or pound-master shall 
refuse to serve, he shall forfeit to the town the sum of ten 
dollars. 

§ 56. Town officers to administer* oaths. —Any town 
officer may administer any necessary oath in any matter or 
proceeding lawfully before him, or to any paper to be 
filed with him as such officer. 


§ 63. Undertaking of commissioner of highways . 

_Every commissioner of highways shall, within ten days 

after notice of his election or appointment, execute an 
undertaking with two or more sureties, to be approved by 
the supervisor of his town, to the effect that he will faith¬ 
fully discharge his duties as such commissioner, and 
within ten days after the expiration of his term of office, 
pay over to his successor all moneys remaining in his hands 
as such commissioner, and render to such successor a true 
account of all moneys received and paid out by him as 
such commissioner, which undertaking shall be delivered 
to the supervisor, and filed by him in the office of the 
town clerk within ten days thereafter. 

14 




210 


The Highway Law of Hew York. 


Resignation of town officers. 


§ 64. Resignation of town officers .—Any three jus¬ 
tices of the peace of a town may, for sufficient cause shown 
to them accept the resignation of any town officer of their 
town; and whenever they shall accept any such resigna¬ 
tion, they shall forthwith give notice thereof to the town 
clerk of the town. 


§ 65. Filling of vacancies .—When a vacancy shall 
occur or exist in any town office, the town board or a 
majority of them may, by an instrument under their 
hands and seals, appoint a suitable person to fill the 
vacancy, and the person appointed, except justices of the 
peace, shall hold the office until the next biennial town 
meeting. . . . The board making the appointment 

shall cause the same to be forthwith filed in the office of 
the town clerk, who shall forthwith give notice to the 
person appoined. 


§ 66. Form of undertaking 9 and liability thereon. 
—Every undertaking of a town officer, as provided by this 
chapter or otherwise, must be executed by such officer 
and his sureties and acknowledged or proven and certi¬ 
fied in like manner as deeds to be recorded, and the ap¬ 
proval indorsed thereon. The parties executing such 
undertaking shall be jointly and severally liable, regard¬ 
less of its form in that respect, for the damages to any 
person or party by reason of a breach of its terms. 

§ 80. General duties of supervisor .—The supervisor 
of each town shall: 

1. Receive and pay over all moneys raised therein for 
defraying town charges, except those raised for the sup¬ 
port of highways and bridges, and of the poor. 






The Highway Law of New York. 


211 


Fires in woods. 


§ 82. Fires in woods .—Whenever the woods in any 
town shall be on fire, it shall be the duty of the justices of 
the peace, the supervisor and commissioners of highways 
of such town, and of each of them, to order such and so 
many of the inhabitants of such town liable to work on 
the highways, and residing in the vicinity of the fire, as 
they shall severally deem necessary, to repair to the place 
where such fire shall prevail, and there to asisst in extin¬ 
guishing the same, or in stopping its progress. 

§ 84. Delivery of books and papers by outyoiny 
officer to successor .—Whenever the term of office of any 
supervisor, town clerk, commissioner of highways or over¬ 
seer of the poor shall expire, or when either of such officers 
shall resign, and another person shall be elected or ap¬ 
pointed to the office, the succeeding officer shall, immedi¬ 
ately after he shall have entered on the duties of his office, 
demand of his predecessor all the records, books and 
papers under his control belonging to such office. Every 
person so going out of office, whenever so required, shall 
deliver upon oath to his successor all the records, books 
and papers in his possession or under his control belonging 
to the office held by him, which oath may be administered 
by the officer to whom such delivery shall be made, and 
shall, at the same time pay over to his successor the 
moneys belonging to the town remaining in his hands. If 
any such officers shall have died, the successors or successor 
of such officer shall make such demand of the executors or 
administrators of such deceased officer, and such execu¬ 
tors or administrators shall deliver, upon the like oath, all 
records, books and papers in their possession, or under 
their control, belonging to the office held by their testator 
or intestate. If any person so going out of office, or his 
executors or administrators, shall refuse or neglect, when 
lawfully required, to deliver such records, books or papers, 




212 


The Highway Law of New York. 


Meeting of town board for receiving accounts. 


lie shall forfeit to the town, for every such refusal or 
neglect, the sum of two hundred and fifty dollars; and 
officers entitled to demand such records, books and papers 
may compel the delivery thereof in the manner prescribed 
by law. 

§ 161. Meeting of town board for receiving ac¬ 
counts of town officers .—At the meeting of the town 
board held on the Tuesday preceding the biennial town 
meeting and on the corresponding date in each alternate 
3 ’ear, or on the third Tuesday of December in each year, 
all town officers who receive or disburse any moneys 
of the town, shall account with the board for all such 
moneys received and disbursed by them by virtue of their 
office, but no member of the board shall sit as a member 
of the board when any account in which he is interested 
is being audited by the board. The board shall make a 
statement of such accounts, and append thereto a certifi¬ 
cate, signed by at least a majority of them, showing the 
state of the accounts of each officer at the date of the cer¬ 
tificate, which statement and certificate shall be filed with 
the town clerk of the town, and be open to public inspec¬ 
tion during the office hours of such town clerk. 

Amended by L. 1897, cli. 481, and by L. 1898. ch. 363. 

§ 171. Town fire companies .—The town board of any 
town may appoint in writing, any number of inhabitants 
of their town, which they may deem necessary, to be a 
fire company for the extinguishment of fires in their town; 
but no such company, as herein provided, shall be formed 
in any incorporated city or village. Each fire company, 
thus formed, shall choose a captain and clerk thereof, 
and may establish such by-laws and regulations as may be 
necessary to enforce the performance, by such firemen, of 
their duty, and may impose such penalties, not exceeding 
five dollars for each offense, as may be necessary for that 





The Highway Law of New York. 


213 


Town fire companies. 


purpose. Such penalties may be collected by and in the 
name of the captains, in any court having cognizance 
thereof, and, when collected, shall be expended by the 
companies for the repair and preservation of their engines 
and apparatus. All vacancies which may, at any time, 
happen in such companies by death, resignation or 
otherwise, shall, from time to time, be filled by the town 
board. The electors of any highway district, in which 
any town fire company shall have their headquarters, at a 
special meeting lawfully called by the town clerk, who is 
hereby authorized to call such special meeting may vote, 
by ballot, a sum of money, not exceeding four thousand 
dollars, for the purchase of a fire engine and apparatus, 
and for the purchase or lease of suitable buildings and 
grounds for keeping and storing such fire engine and 
apparatus and other property of said highway district. 
And whenever said electors shall so vote said money for 
the purchase of a fire engine and apparatus and for the 
purchase or lease of suitable buildings and grounds for 
keeping and storing such fire engine and apparatus and 
other property of said highway district, the commissioners 
of highways may, with the written consent and approval 
of the town board, contract for and purchase for such dis¬ 
trict a good and sufficient fire engine and apparatus, and 
may contract for and purchase or lease for such district, 
suitable buildings and grounds for keeping and storing 
such fire engine and apparatus, and other property of said 
district, at a price not to exceed the sum so voted, which 
engine and apparatus and buildings and grounds shall be 
the property of said highway district, but may be used and 
cared for by such fire company. The purchase-price of 
said fire engine and apparatus and buildings and grounds 
shall be assessed and levied upon the property of said dis¬ 
trict and collected in the same manner as other town 
charges are assessed, levied and collected, except that the 






214 


The Highway Law of New York. 


Compensation of town officers. 


amount thereof shall be putjin a separate column upon the 
tax-roll, and the board of supervisors of the county shall 
cause the sum, as certified by the town board, to be levied 

upon the taxable property of such highway district. 

Amended by L. 1891, ch. 254, and by L. 1894, cli. 201. 

§ 178. Compensation of town officers .—Town officers 
shall be entitled to compensation at the following rates for 
each day actually and necessarily devoted by them to the 
service of the town in the duties of their repective offices, 
when no fee is allowed by law for the service, as follows: 

1. The supervisor, except when attending the board of 
supervisors, town clerks, assessors, commissioners of 
highways, justices of the peace and overseers of the poor, 
each, two dollars per day. 

2. If a different rate is not otherwise established as herein 
provided, each inspector of election, ballot clerk and poll 
clerk is entitled to two dollars per day; but the board of 
supervisors may establish in their county a higher rate, not 
exceeding six dollars per day. 

Amended by L. 1897, ch. 252. 

§ 180, sub. 8. 

8. Every sum allowed by the highway commissioners of 
a town in which the highways are worked and repaired by 
the money system of taxation in abatement of highway 
taxes for the maintenance of watering troughs [is a charge 
upon the town.—E d.] 

Added by L. 1897, ch. 227. 


§ 184. Whenever a town meeting shall vote a special 
appropriation of money in the sum of five hundred dollars 
or more, or an appropriation for highway purposes or for 
the support of the poor during the current year, to be 
levied upon the taxable property of the town, the town 




The Highway Law of New York. 


215 


Kings county. 


board shall have power to borrow the sum so appropriated 
upon the faith and credit of the town, and to issue there¬ 
for a certificate or certificates of indebtedness, bearing 
interest and payable at such date or dates as may be fixed 
by said board, and the proceeds of such loan shall be 
placed to the credit of the public officers charged by law 
with the expenditure of said moueys. A statement of the 
amount maturing on such certificate of indebtedness shall 
be certified by the town board at its second meeting and 
delivered to the supervisor of the town, to be by him pre¬ 
sented to the board of supervisors of his county at its 
annual meeting, and the said board of supervisors shall 
cause the amount specified in such certified statement to 
be levied and raised upon the taxable property of the town 
in the same manner as they are directed to levy and raise 
other town charges. 

Added by L. 1897, ch. 84. 


The following sections are applicable only to Kings 
county: 

§ 220. Total officers .—The town officers of each town 
in counties containing six hundred thousand or more in¬ 
habitants, as determined by the last preceding federal or 
state enumeration of the inhabitants taken prior to any 
election of town officers, shall be . . . one or three 

commissioners of highways, 

Amended by L. 1893, ch. 61, and by L. 1893, ch. 38/. 


§ 221. Election of officers .—The said town officers 
shall be elected by ballot by the electors of each town at 
the annual town meeting held next preceding the "general 
election at which they would have been elected under the 

present existing laws, 

Amended by L. 1893, ch. 387. 




216 


The Highway Law of New York. 


Term of office. 


§ 222. Term of office .—The supervisor shall hold 
office for the term of two years; the town clerk, assessors, 
commissioners of highways, commissioners of excise and 
town auditors, each for the term of three years; 

When three or more incumbents are required for any one 
of said offices, the term of which is three or more years, 
one candidate shall be elected for the regular or full term 
in each year. 

Amended by L. 1893, ch. 387. 


§ 225. Full terms and vacancies .—When more than 
one justice of the peace, assessor, commissioner of excise, 
commissioner of highways, town auditor or constable are 
to be chosen in any of said towns, each elector shall desig¬ 
nate upon his ballot the person intended for the full term 
and for a vacancy, and if there are two or more vacancies 
they shall be designated as the longer and the shorter, or 
the longer, shorter and shortest vacancy, as the case may 
be, and each person having the greatest number of votes 
with reference to each designation shall be deemed duly 
elected for the term or vacancy designated. 

Amended by L. 1893, ch. 387. 


§ 228. Fiscal year; meeting of town boards .—The 
fiscal year in such towns shall begin on the first day of 
January and terminate on the thirty-first day of December. 
The board of town auditors shall meet annually for the 
purpose of auditing the accounts of town officers at the 
office of the town clerk on the thirtieth day of December, 
at two o’clock in the afternoon, except when the same 
shall occur on Sunday, in which case such meeting shall 
be held on the twenty-ninth; and all town officers or 
boards of town officers who receive or disburse any moneys 







The Highway Law of New Yore. 


217 


Resignations. 


belonging to the town shall account for the same, under 
oath, to said board, annually, at such meeting. 

Amended by L. 1893, ch. 387. 

§ 232. Resignations .—The supervisor and justices of 
the peace of each town or a majority of them may accept 
the resignation of any town officer, and make appointments 
to fill vacancies that may be occasioned thereby, or by 
death, removal from town, refusal to serve, failure to 
qualify or otherwise, and shall file the certificates thereof 
in the office of the town clerk. 

Amended by L. 1893, ch. 387. 

§ 233. Vacancies .—The persons who may be appointed 
to fill vacancies in town offices shall serve until the second 
day following the next annual town meeting, or until their 
successors shall be duly elected and qualified; 

Persons who may be elected to fill vacancies in town offices 
shall serve during the remainder of the unexpired term. 

Added by;L. 1893, ch. 387. 

§ 234. Official oath and undertaking .—Each of said 
town officers, except justices of the peace and inspectors 
of election, shall, before the commencement of the term 
for which they were elected or appointed, or if appointed 
to fill vacancies, within ten days after their appointment, 
severally take the constitutional oath of office, and file the 
same in the office of the town clerk, and also, within the 
same time, file therein the undertakings, if any, which are 
required to be given by them for the faithful discharge of 
their duties. . . . If . . . such officers shall fail, 

neglect, refuse or omit to comply with the provisions of 
this section, a vacancy shall thereupon be created, which 
shall be filled by appointment in the manner prescribed 
by this article; . 

Added by L. 1893, ch. 387. 




218 


The Highway Law of New York. 


Village Law. 


VILLAGE LAW. 


§ 226. Water pipes in highways outside of village . 
—The board of water commissioners of a village may cause 
water pipes to be laid, relaid or repaired under any public 
highway in a county in which any part of such village is 
situated, or in any adjoining county, for the purpose of 
introducing water into and through the village; and shall 
cause the surface of such highway to be restored to its 
usual condition. 


ARTICLE V. 


Streets, Sidewalks and Public Grounds. 


Section 140. Definitions. 


141. Separate highway district. 

142. Care of bridges. 

143. When village may construct or repair bridges. 

144. Dedication of streets. 

145. Petition for street improvement. 

146. Notice of meeting of board to consider petition. 

147. Meeting and determination of board. 

148. Effect of determination. 

149. Application for commissioners ; notice of application 

150. Appointment of commissioners. 

151. Notice of meeting of commissioners. 

152. Meeting and award of commissioners. 

153. Appeal from award of commissioners. 

154. Return by clerk. 

155. Hearing of the appeal. 

156. Compensation of commissioners. 

157. Costs on appeal. 




The Highway Law of New York. 


219 


Streets, sidewalks and public grounds. 


Section 158. Payment for property acquired for street improvements. 

159. Changing grade of street or bridge. 

160. Streets on boundary lines. 

161. Crosswalks and sidewalks. 

162. Credit for flagging sidewalks. 

163. Snow and ice on sidewalks. 

164. Cleaning streets. 

165. Sprinkling streets. 

166. Pavements. 

167. Trimming trees. 

168. Local assessments under this article. 

169. Acquisition of lands for parks and squares. 


Section 140. Definitions . —The term “street” as used 
in this chapter also includes a highway, road, .avenue, 
lane or alley which the public have the right to use; and 
the term “pavement” includes a macadam, telford, 
asphalt, brick or other similarly improved roadbed, and 
is only applied to the portion of the street between the 
sidewalks or established curb lines. 

§ 141. Separate higluvay district .—The streets and 
public grounds of a village, except as provided in the 
next section, are under the exclusive control and supervi¬ 
sion of the board of trustees. The board of trustees may 
expend a portion of the street fund upon outside highways 
connecting with the village streets. 

§ 142. Care of bridges .—If at the time this chapter 
takes effect, the board of trustees of a village has the 
supervision and control of a bridge therein, it shall con¬ 
tinue to exercise such control under tins chapter. In any 
other case, every public bridge within a village, shall be 
under the control of the commissioners of highways of the 
town in which the bridge is wholly or partly situated, or 




220 


The Highway Law of New York. 


Dedication of streets. 


such other officer as may be designated by special law, and 
the expense of constructing and repairing such bridge and 
the approaches thereto is a town charge, unless the village 
assumes the whole or part of such expense. 

§ 143. When village may construct or repair 
bridges ,—A village may assume the control, care and 
maintenance of a bridge or bridges wholly within its 
boundaries, upon the adoption of a proposition therefor, 
at a village election; or a proposition may be adopted 
authorizing the board of trustees to enter into an agree¬ 
ment with the commissioners of highways of a town, in 
which any part of such village is situated, to construct or 
repair a bridge in any part of the village included in such 
town, at the joint expense of the village and town, which 
agreement shall fix the portion to be paid by each. 


§ 144. Dedication of streets ,—An owner of land in 
a village who has laid out a street thereon may dedicate 
such street, or any part thereof, or an easement therein, to 
the village for a public street, or an owner may dedicate 
for such purpose land not laid out as a street. Upon an 
offer in writing by the owner to make such a dedication, 
the board of trustees shall meet to consider the matter; 
and it may, by resolution, determine to accept a dedication 
of the whole or any part of the land described in such 
offer, or of the whole or any part of such street, to be 
described in such resolution. Upon the adoption of such 
a resolution the owner may execute and deliver to the 
village clerk a proper conveyance of the land to be dedi¬ 
cated. The board of trustees may, by resolution, accept 
the conveyance, and a certified copy of such resolution, 
together with the conveyance, shall thereupon be recorded 
in the office of the county clerk. Upon the acceptance of 




The Highway Law of New York. 


221 


Petition for street improvement. 


the conveyance the land described therein shall become 
and be a public street of the village. No street less than 
two rods in width shall be accepted by dedication. All 
offers of dedication must be entered at length in the min¬ 
utes of the board of trustees. 

§ 145. Petition for street improvement. —Five resi¬ 
dent freeholders may present to the board of trustees a 
petition for laying out, altering, widening, narrowing or 
discontinuing a street in the village , The petition must 
be addressed to the board of trustees, and must contain a 
statement of the following facts: 

1. The names and residences of the petitioners. 

2. If the petition be for the laying out of a street, the 
general course thereof, and a description of the land to be 
taken. 

3. If the petition be for the alteration of a street, its 
name, the proposed alteration, and a description of the 
land, if any, to be taken. 

4. If the petition be for the widening of a street, its 
name and a description of the land to be taken. 

5. If the petition be for the narrowing of a street, its 
name, its proposed width after such alteration, and the 
manner in which such narrowing is to be effected. 

6. If the petition be for the discontinuance of a street, 
its name and the part proposed to be discontinued. 

7. If the petition be for the laying out, alteration or 
widening of a street, the names and residences of the 
owners of all land to be taken. 

8. If the petition be for the narrowing or discontinuance 
of a street, the names and residences of the owners of 
adjoining lands effected. 


§ 146. Notice of meeting of board to consider pe¬ 
tition.— Upon the presentation of the petition the board 




222 


The Highway Law of New York. 


Notice of meeting of board. 


shall immediately give notice that it will ‘meet at a speci¬ 
fied time and place, not less than ten nor more than twenty 
days from the date of such notice, to consider the petition. 
The notice must state the general object of the petition, 
and if it be for the laying out of a street, a general descrip¬ 
tion of its proposed course, and in any other case, the 
name of the street proposed to be changed or discontinued. 

The notice must be served upon the following persons, 
unless such service be waived by them in writing: 

1. If the petition be for the laying out of a street, upon 
each owner of land to betaken. 

2. If the petition be for the alteration or widening of a 
street, upon each owner of land, if any, to be taken, and 
upon each owner of land adjoining the part of the street 
affected. 

3. If the petition be for the narrowing of a street, upon 
each owner of land adjoining the part of the street 
affected. 

4. If the petition be for the discontinuance of a street, 
upon each owner of land adjoining the part of the street 
proposed to be discontinued, and also upon the owner of 
land otherwise alfected by the proposed discontinuance. 

If a person other than the owner is in possession of such 
land, notice must also be served upon him. Such notice 
shall also be published in each newspaper in the village, 
and posted in five conspicuous places therein. The notice 

must be served, posted and published at least ten davs 

»/ 

before the hearing. 


§ 147. Meeting and determination of board .— The 
board shall .meet at the time and place specified in the 
notice to consider the petition and also any objections 
thereto. A person affected by the proposed improvement, 
and upon whom notice has not been served, may appear 
upon the hearing. A voluntary general appearance of 




The Highway Law of New York. 


223 


Application for commissioners. 


such a person is equivalent to personal service of the notice 
upon him. The board may adjourn the hearing and must 
determine the matter within twenty days from the date 
fixed for such hearing. If the board determine to grant 
the petition an order must be entered in its minutes con¬ 
taining a description of the land, if any, to be taken. 


§ 148. Effect of determination. —The determination 
by the board has the following effect: 

1. If the petition for the laying out, alteration or 
widening of a street be granted, the board of trustees may 
acquire the land for such improvement by purchase or by 
proceedings under this article. But no street shall be laid 
out through a building or any fixtures or erections for the 
purposes of trade or manufacture, or any yard or enclosure 
necessary to be used for the enjoyment thereof, without 
the consent of the owner, except upon the order of a jus¬ 
tice of the supreme court residing in the judicial district 
in which the village or a part thereof is situated, to be 
granted upon an application by the board of trustees on a 
notice to the owner of not less than ten days. 

2. If the petition for the narrowing of a street be 
granted, the board shall enter upon its records a descrip¬ 
tion of the street after such narrowing, and the portion of 
the former street not included in such description is 
abandoned. 

3. If the petition, or the discontinuance of a street be 
granted, such street or the part thereof so discontinued 
i3 abandoned. 


§ 149. Application for commissioners; notice of 
application. —If a petition for the laying out, alteration or 
widening of a street be granted, and the board cannot 
agree with an owner upon the purchase price of land 




224 


The Highway Law of New York. 


Meeting and award of commissioners. 


necessary to be acquired, an application may be made by 
the board to the county court of the county in which such 
land is situated, for the appointment of three commissioners 
to determine the compensation to be made to such owner. 
At least ten days before the making of such application a 
notice specifying the time and place thereof must be served 
upon such owner. 

§ 150. Appointment of commissioners. —Upon such 
application the county court must appoint as such com¬ 
missioners three resident disinterested freeholders of the 
county in which such land is situated, not residents of the 
village nor nominated by a person interested in the pro¬ 
ceeding. In case of a vacancy another commissioner may 
be appointed in like manner. The order of appointment 
must contain the name of each person whose compensa¬ 
tion is to be determined by the commissioners. 

0 

§ 151. Notice of meeting of commissioners. —The 
commissioners shall file with the village clerk the consti¬ 
tutional oath of office. They shall appoint a time and 
place for a hearing and serve a notice thereof upon the 
board of trustees and upon each person named in the order. 
Such notice must be served at least ten days before the 
hearing, which must be held within twenty days after 
their appointment. 

§ 152. Meeting and award of commissioners. —The 
commissioners shall meet at the time and place appointed 
and may adjourn from time to time. They shall person¬ 
ally examine the land, compensation for which is to be 
determined by them, and may take testimony in relation 
thereto. They shall keep minutes of their proceedings and 
reduce to writing all evidence taken by them. They shall 




The Highway Law of New York. 


225 


Appeal from award of commissioners. 


award to each owner of land named in the order the com¬ 
pensation to which he maybe entitled after making allow¬ 
ance for any benefit he may derive from the improvement. 
After the appointment of the commissioners and before 
any evidence is taken on the hearing, the board may make 
an agreement with an owner named in the order for the 
compensation to be made to him. If such an agreement 
be made, notice thereof must be served upon the commis¬ 
sioners, and thereupon the proceeding as to such owner is 
discontinued. The award shall be signed by a majority of 
the commissioners, and, together with the minutes of their 
proceedings, the evidence taken by them, and any notice 
of agreement served upon them, shall be filed in the office 
of the village clerk. 


§ 153. Appeal from award of commissioners .—The 
board of trustees, or an owner to whom an award has 
been made by the commissioners, may, within twenty 
days after the filing of the award, appeal therefrom to the 
county court by which the commissioners were appointed. 
Such appeal shall be taken by a notice of appeal to be 
served as follows: 

1. If the appeal be taken by the board of trustees, notice 
thereof must be filed by the village clerk in his office, and 
addressed to and served upon each owner to whose award 

objection is made by the board. 

2. If the appeal be taken by an owner, the notice of 
appeal must be addressed to the board of trustees and 

served upon the village clerk. 

The notice must in either case briefly state the grounds 

upon which the appeal is taken. 


§ 154. Return by clerk .—Within ten days after such 
appeal the village clerk shall transmit to the county judge 
15 




226 


The Highway Law of New York. 


Hearing of the appeal. 


the petition tiled with the board for the laying out, altera¬ 
tion or widening of the proposed street, all papers and 
evidence in the proceeding subsequently filed in his office, 
and a certified copy of each resolution of the board of 
trustees relating to the improvement. 


§ 155. Hearing of the appeal .—The appeal may be 
brought on by either party by a notice of not less than ten 
nor more than twenty days. If the appeal is by the board 
of trustees, it brings up for review all proceedings by or 
before the commissioners, and the award made by them. 
If the appeal is by an owner, it brings up for review all 
proceedings relating to the proposed improvement. If 
the appeal is by the board of trustees, and two or more 
owners are made respondents, the county court may affirm 
or reverse the award of the commissioners as to the whole 
or any number of such owners; and if the appeal is by an 
owner, the county court may affirm or reverse the award. 

If the award be reversed, the order of reversal must state 
the reasons therefor, and if upon grounds relating to the 
amount of the award, or for errors in the proceedings by 
the commissioners, it must direct a rehearing before the 
same or other commissioners. 

If it appears from the order of the county court that the 
award is reversed solely upon grounds relating to the 
amount of compensation, or for errors in the proceedings 
by the commissioners, no further appeal shall be allowed. 
The order of the county court upon such appeal, together 
with the papers transmitted by the village clerk, must be 
filed by the county judge in the office of such clerk. The 
order must also be entered in the office of the county clerk. 

§ 156. Compensation of commissioners .—Each com¬ 
missioner is enittled to five dollars for each day actually 







The Highway Law of New York. 


227 


Costs on appeal. 


and necessarily spent in such proceeding, together with 
his necessary traveling and incidental expenses. Such 
compensation and expenses are a charge against the 
village. 

§ 157. Costs on appeal .—Costs on appeal may be 
allowed as follows: 

1. If on appeal by the board of trustees the award of the 
commissioners be affirmed, the county court may allow to 
the respondent costs of such appeal, against the village, 
not exceeding twenty-five dollars. 

2. If on such an appeal the award be reversed on the 
ground that as to a specified owner it is excessive, the 
court may fix the amount of costs, not exceeding fifty dol¬ 
lars, to be stated in the order, to be paid by the village to 
such owner, if upon a rehearing the amount awarded to 
him is not more favorable to the village by the amount of 
such costs than the first award. 

3. If on appeal by an owner the award be affirmed, costs 
not exceeding twenty-five dollars may be awarded against 
him, to be recovered by the village. 

4. If on such an appeal the award be reversed, the 
county court may allow to the owner a sum not exceeding 
twenty-five dollars for the costs of appeal, which shall be 
a charge against the village. 

§ 158. Payment for property acquired for street 
improvement .—Upon the making of an agreement for 
compensation to an owner under this article, or upon the 
final order or award fixing the amount of such compensa¬ 
tion in proceedings therefor, the board shall immediately 
pay such amounts and the costs, if any, allowed in such 
proceedings, if it has funds available for that purpose; if 
not, money may be borrowed and certificates of indebted¬ 
ness bearing interest issued therefor, or like certificates 






228 


The Highway Law of New York. 


Changing grade of street or bridge. 


may be issued for such amounts, and payable, in either 
case, not more than one year from the date thereof; and 
the amount of such certificates shall be included in the 
next annual tax levy. 

§ 159. Changing grade of street or bridge .—If a 
village has exclusive control and jurisdiction of a street or 
bridge therein, it may change the grade thereof. If such 
change of grade shall injuriously affect any building or 
land adjacent thereto, or the use thereof, the change of 
grade to the extent of the damage resulting therefrom, shall 
be deemed the taking of such adjacent property for a pub¬ 
lic use. A person claiming damages from such change of 
grade must present to the board of trustees a verified 
claim therefor, within sixty days after such change of 
grade is affected. The board may agree with such owner 
upon the amount of damages to be allowed to him. If no 
agreement be made, within thirty days after the presenta¬ 
tion of the claim, the person presenting it may apply to 
the supreme court for the appointment of three commis¬ 
sioners to determine the compensation to which he is 
entitled. Notice of the application must be served upon 
the board of trustees at least ten days before the hearing 
thereof. All proceedings subsequent to the appointment 
of the commissioners shall be taken in accordance with the 
provisions of the condemnation law, so far as applicable, 
except that the commissioners in fixing their award may 
make an allowance for benefits derived by the claimant 
from such improvement. The amount agreed upon for 
such damages or the award therefor, together with the 
costs, if any, allowed to the claimant, shall be a charge 
against such village. The board may borrow money for 
the payment thereof, or issue certificates of indebtedness 
therefor, in the same manner as in case of damages for 
laying out a street. 




The Highway Law of New York. 


229 


Streets on boundary lines. 


§ 160. Streets on boundary lines .—Whenever a street 
is on a line between two villages, or between a village 
and a city or town, the highway or street commissioners 
of such adjoining municipalities shall, on or before the 
first day of May in each year, meet at a time and place to 
be determined by them, and divide such street. The 
officers present at such meeting shall allot a part of the 
street to each municipality in such manner that the labor 
and expense of keeping such street in repair may be equal 
as nearly as practicable. The officers making such division 
shall, within ten days thereafter, file in the office of the 
clerk of each municipality a certificate showing the part 
of such street allotted to each. 

§ 161. Crosswalks and sidewalks .—The board of 
trustees may construct and repair crosswalks upon the 
streets within the village. It may also construct and 
repair sidewalks upon such a street wholly at the expense of 
the village, or of the owners or occupants of the adjoining 
land, or partly at the expense of each. Upon the adop¬ 
tion of a proposition therefor in a village of the third or 
fourth class, all sidewalks shall thereafter be constructed 
and repaired wholly at the expense of the village. If a 
sidewalk is so required to be constructed or repaired wholly 
at the expense of the owners or occupants of the adjoining 
lands, a notice specifying the place and manner, and the 
time, not less than ten days, in case of a new walk, or 
not less than twenty-four hours in case of repairs, within 
which the sidewalk is required to be constructed or re¬ 
paired, shall be served upon such owners or occupants. 
If an owner or occupant shall not construct or repair the 
sidewalk as required by the notice, the board of trustees 
may cause the same to be so constructed or repaired, and 
assess the expense thereof upon the adjoining land. 

If a sidewalk is to be constructed or repaired at the 




230 


The Highway Law of New York. 


Credit for flagging sidewalk. 


joint expense of the village and the owner or occupant, the 
board of trustees may cause the same to be constructed or 
repaired, and assess upon the adjoining land the propor¬ 
tion of the expense chargeable against the same; or it may 
direct the owner or occupant to contribute labor or ma¬ 
terials therefor. 

§ 162. Credit for flagging sidewalk *—Whenever the 
owner or occupant of lands adjoining a street shall, with 
the consent of the board of trustees, construct a sidewalk 
of stone, cement, brick or other similar material along 
the line of such land, of the width of four feet or more, 
and of the value of at least four dollars per lineal rod, the 
board of trustees shall credit such owner or occupant on 
account of his assessment for street taxes in such village, 
three-fourths of the actual and necessary expense of con¬ 
structing such sidewalk; or, instead of such credit, may 
pay to such owner or occupant from the street fund of the 
current year, one-half of the cost of such sidewalk. If 
credit is allowed, such owner or occupant shall be exempt 
from taxation on account of streets in such village until 
the amount of the exemption equals the credit so allowed. 

§ 163. Snow and ice on sidewalks .—The board of 
trustees may require the owners or occupants of land 
fronting on sidewalks to keep them clear of snow and ice, 
and upon default, may cause such sidewalks to be cleaned, 
and assess the expense thereof upon such adjoining laud, 
or may cause the sidewalks on any street or portion thereof 
to be kept clear of snow and ice, and assess the expense 
upon the adjoining land. 

§ 164. Cleaning streets .—The board of trustees may 
require the owners of land fronting upon the streets to 
keep the portion of the street between the land and the 






The Highway Law of New York. 


231 


Sprinkling streets. 


center of the street cleaned of rubbish or other accumula¬ 
tions thereon, injurious to the use or appearance thereof, 
and to cause all grass and weeds growing therein to be cut 
and removed once in each month from May to October, 
inclusive. If the owner of such adjoining land shall fail 
to comply with such requirement the board of trustees 
may cause such work to be done, and assess the expense 
thereof upon such adjoining land. 

§ 165. Sprinkling streets .—The board of trustees may 
cause a street or a part thereof to be sprinkled, and may 
assess the expense thereof, in whole or in part, upon the 
owners or occupants of the adjoining land. 

§ 166. j Pavements ,—The board of trustees may cause 
a street in the village to be paved, wholly at the expense 
of the village, or of the owners of the adjoining land, or 
partly at the expense of each; but such street shall not be 
paved wholly at the expense of the owners of the adjoining 
land unless a petition be presented to the board of trustees 
signed by the owners of at least two-thirds of the frontage 
on the street, or portion thereof, proposed to be paved, and 
a hearing given thereon to all persons interested, on a 
notice of at least ten days. If a pavement is so required 
to be constructed or repaired wholly at the expense of the 
owners of the adjoining lands, a notice specifying the 
place and manner, and the time, not less than thirty days, 
within which the pavement is required to be constructed 
or repaired, shall be served upon the owners. If an owner 
shall not construct or repair the pavement as required by 
the notice, the board of trustees may cause the same to be 
so constructed or repaired, and assess the expense thereof 
upon the adjoining land. If a pavement is to be con¬ 
structed or repaired at the joint expense of the village and 
the owner of the adjoining land, the board of trustees may 
cause the same to be constructed or repaired, and assess 




232 


The Highway Law of New York. 


Trimming trees. 


upon the adjoining land the proportion of the expense 
chargeable against the same; or it may direct the owner 
to contribute labor or materials therefor. The total 
amount expended for street paving in any fiscal year from 
the moneys raised during such year for street purposes, 
otherwise than in pursuance of a village election, shall not 
be more than one-half thereof. No land owner shall be 
required to pave or bear the expense of paving any portion 
of the street not in front of such land, nor beyond the cen¬ 
tre of the street. All pavements laid by the owners of 
adjoining land shall be laid under the supervision and in 
accordance with the directions of the board of trustees. 
The expense of constructing a pavement or any part 
thereof may be raised in an entire amount or in similar 
amounts from time to time as the board of trustees may 
determine. If any portion of such expense is to be borne 
by the village, bonds or certificates of indebtedness may be 
issued. If such expense or an}? part thereof is to be 
assessed upon adjoining land, the board may apportion it 
upon the lands and assess the same as a whole or by in¬ 
stallments. Notice of an assessment based upon such 
apportionment shall be given to the land owners, who may 
pay the amounts assessed within ten days after such 
notice. At the expiration of that time bonds or certifi¬ 
cates of indebtedness may be issued for the aggregate 
amount of such assessment then remaining unpaid. Taxes 
for the amount of such bonds or certificates issued on 
account of default in the payment of the amount appor¬ 
tioned upon adjoining land, shall be levied and collected 
in the manner prescribed by this chapter in case of unpaid 
assessments for the construction of sewers. 

Amended by L. 1898, cli. 365. 

§ 167. Trimming trees .—The board of trustees may 
require the owners of land to trim the trees in front 






The Highway Law of New York. 


233 


Local assessments under this article. 


thereof, and upon default, may cause such trees to be 
trimmed, and assess the expense thereof upon the adjoin¬ 
ing land. 

§ 168. Local assessments under this article .— 
Whenever expenditures are made by the board of trustees 
for constructing or repairing sidewalks or pavements, 
trimming trees, sprinkling streets or keeping the side¬ 
walks or streets cleared of weeds, ice, snow or other accu¬ 
mulations thereon, which under this article are assessable 
upon the land affected or improved thereby, the board shall 
serve a notice of at least ten days upon the owner or occu¬ 
pant of such property, stating that such expenditure has 
been made, its purpose and amount, and that at a speci¬ 
fied time and place it will meet to make an assessment of 
the expenditure upon such land. The board shall meet 
at the time and place specified. It shall hear and deter¬ 
mine all objections that may be made to such assessment, - 
including the amount thereof, and shall assess upon the 
land the amount which it may deem just and reasonable, 
not exceeding, in case of default, the amount stated in the 
notice. 

If the amount so assessed be not .paid within twenty 
days after such assessment, an action to recover the 
amount may be maintained by the village against the 
owner or occupant liable therefor, or a special warrant 
may be issued by the board of trustees for the collection of 
such assessment, or the amount thereof may be included 
in the next annual tax levy. 

§ 169. A cquisition of lands for parks and squares. 
—The board of trustees may, on behalf of the village, ac¬ 
cept by grant or devise a gift of land for a public park or 
square within the village, or wholly within one mile of 
the boundaries thereof, or may submit to a village election 






234 


The Highway Law of New York. 


Acquisition of lands for parks and squares. 


a proposition to purchase land so located for such purpose 
at an expense, specified in the proposition, not exceeding 
one per centum of the value of the taxable property of the 
village, as appears by the last preceding assessment roll. 
Upon the acquisition of land for the purposes of this sec¬ 
tion, either by gift or purchase, the board may establish 
and maintain a public park or square thereon. 




The Highway Law of New York. 


235 


Transportation corporations law. 


T RANSPORTATION CORPORA¬ 
TIONS LAW. 


§ 33. Crossings .—Wherever any tramway, constructed 
by any such corporation, shall cross a railroad, highway, 
turnpike, plank-road or canal, such tramway shall be so 
constructed as not to interfere with the free use. of such 
railroad, highway, turnpike, plank-road or canal for the 
purposes for which they were intended. 

§ 43. Hailroad, turnpike, plank-road and high¬ 
way crossings .—Whenever any line of pipe of any such 
corporation shall necessarily cross any railroad, highway, 
turnpike or plank-road, such line of pipe shall be made to 
cross under such railroad, highway, turnpike or plank-road 
and with the least injury thereto practicable, and unless 
the right to cross the same shall be acquired by agree¬ 
ment, compensation shall be ascertained and made to the 
owners thereof, or to the public in case of highways, in 
the manner prescribed in the condemnation law, but no ex¬ 
clusive title or use shall be so acquired as against any rail¬ 
road, turnpike or plank-road corporation, nor as against 
the rights of the people of this state in any public high¬ 
way, but the rights acquired shall be a common use of the 
lands in such manner as to be of the least practical injury 
to such railroad, turnpike or plank-road, consistent with 
the use thereof by such pipe-line corporation, nor shall 
any such corporation take or use any lands, fixtures or 
erections of any railroad corporation, or have the right 
to acquire by condemnation the title or use, or right to run 
along or upon the lands of any such corporation, except for 
the purpose of directly crossing the same when necessary. 





236 


The Highway Law of New York. 


Consent of local authorities. 


§ 45. Consent of local authorities .—No pipe line 
shall be constructed across, along or upon any public 
highway without the consent of the commissioners of high¬ 
ways of the town in which such highway is located, upon 
such terms as may be agreed upon with such commis¬ 
sioners. If such consent or the consent of the commis¬ 
sioners or municipal authorities required by the preceding 
section cannot be obtained, application may^be made to the 
general term of the supreme court of the department in 
which such highway or bridge is situated for an order per¬ 
mitting the corporation to construct its line across, along 
or upon such highway, or across or upon such bridge. 
The application shall be by duly verified petition and 
notice which shall be served upon the commissioners of 
highways of the town in which the highway is situated, 
or the municipal authorities of the village or city where 
such bridge is located, according to the practice or order 
of the court, or an order to show cause, and the court 
upon the hearing of the application may grant an order per¬ 
mitting the line to be so constructed in such manner and 
upon such terms as it may direct. 





The Highway Law of New York. 


237 


Turnpike, plank-road and bridge corporations. 


ARTICLE IX. 

Turnpike, Plank-Road and Bridge Corporations, 

Section 120, Incorporation. 

121. Restriction upon location of road. 

122. Agreement for use of highway. 

123. Application to board of supervisors. 

124. Commissioners to lay out road. 

125. Possession of and title to real estate. 

126. Use of turnpike road by plank road. 

127. Width and construction of road. 

128. Construction of bridges ; obstruction of rafts prohibited, 

129. Certificate of completion of road or bridge. 

130. Gates, rates of toll; and exemption. 

131. Toll gatherers. 

132. Penalty for running a gate. 

133. Location of gates and change thereof. 

134. Inspectors, their powers and duties. 

135. Change of route, extensions and branches. 

136. Milestones, guide-posts and hoist-gates. 

137. Location of office of corporation. 

138. Consolidation of corporations, sale of franchise. 

139. Surrender of road. 

140. Taxation and exemption. 

141. Hauling logs and timber. 

142. Encroachment of fences. 

143. Penalty for fast driving over bridges. 

144. Acts of directors prohibited. 

145. Actions for penalties. 

146. Proof of incorporation. 

147. When stockholders, to be directors. 

148. Dissolution of corporation, road to be a highway. 

149. Town must pay for lands not originally a highway. 

150. Highway labor upon line of plank-road or turnpike,. 

151. Extensionof corporate existence. 









238 


The Highway Law of New York. 


Incorporation. 


Section 120. Incorporation .—Five or more persons 
may become a corporation for the purpose of constructing, 
maintaining and owning a turnpike, plank-road or a 
bridge, or causewa} 7 across any stream or channel of water, 
or adjoining bay, swamp, marsh, or water to form in con¬ 
nection with such bridge or causeway a continuous road¬ 
way across the same, by signing, acknowledging and filing 
a certificate containing the name of the corporation, its 
duration, not exceeding fifty years, the amount and num¬ 
ber of shares of its capital stock, the number of its direc¬ 
tors, and their names and post-office address for the first 
year, the termini of the proposed road, its length, and 
each town, city or village into or through which it is to 
pass, or of a bridge, the location and plan thereof, and the 
post-office address of each subscriber, and the number of 
shares of stock which he agrees to take, the aggregate of 
which subscriptions shall not be less than five hundred 
dollars for every mile of road, or if a bridge corporation 
not less than one-fourth of the amount of the capital stock, 
and five per cent of which must be actually paid in cash. 
There shall be indorsed on and annexed to the certificate 
and made a part thereof the affidavit of at least three of 
the directors named therein, that the required amount of 
capital stock has been subscribed and the prescribed per¬ 
centage paid in cash. 

§ 121. j Restrictions upon locat ion of road .—No such 
road shall be laid out through any orchard of the growth 
of four years or more to the injury or destruction of fruit 
trees, or through any garden cultivated for four years or 
more before the laying out of the road, or through any 
dwelling-house or building connected therewith, or any 
yards or inclosures necessary for its use or enjoyment 
without the consent of the owner thereof, nor shall any 
such corporation bridge any stream in any manner that 






The Highway Law of Hew York. 


239 


Agreement for use of highways. 


will prevent or endanger the passage of any raft of twenty- 
five feet in width, or where the same is navigable by 
vessels or steamboats. 

§ 122. Agreement for use of highways .—The super¬ 
visor and commissioner of higways, or a majority if there 
be more than one of any town, may agree in writing with 
any such corporation for the use of any part of a public 
highway therein required for the construction of any such 
road, and the compensation to be paid by the corporation 
for taking and using such highway for such purpose on 
first obtaining consent of at least two-thirds of all the 
owners of land bounded on or along such highway, which 
agreement shall be filed and recorded in the town clerk’s 
office of the town. If such agreement cannot be made the 
corporation may acquire the right to take such highway 
for such purpose by condemation. The compensation 
therefor shall be paid to the commissioners of highways, 
to be expended by them in improving the highways of the 
town. 


§ 123. Application to board of supervisors.—It the 
lands necessary for the construction of the road or 
bridge of any such corporation in any county have 
not been procured by gift or purchase, and the right 
to take and use any part of any highway therein 
required by such corporation shall not have been pro¬ 
cured by agreement with the supervisor and commis¬ 
sioners of highways of the town in which such highway is 
situated, the corporation may make application to the 
board of supervisors of each county in which such biidge 
or road, or any part thereof, is to be located, for authority 
to build, lay out and construct the same, and take the 
necessary real estate for such purpose. Notice of the 
application shall be published in at least one public news- 




240 


The Highway Law of New York. 


Commissioners to lay out road. 


paper in each county for six successive weeks, specify¬ 
ing the time and place where it will be made, the 
location, length and breadth of any such bridge, 
and the length and route of any such proposed road, 
its character, and each town, city and village in or 
through which it is to be constructed. The application 
may be made at any annual or special meeting of the 
board, and if the corporation desires a special meeting 
therefor any three members of the board may fix a time 
when the same shall be held, and notice thereof shall be 
served upon each of the other supervisors by delivering the 
same to him personally or leaving it at his place of resi¬ 
dence at least twenty days before the minutes,* and the 
expenses of the special meeting and of notifying the mem¬ 
bers of the board thereof shall be paid by the corporation. 
All persons interested therein or owning real estate in any 
of the towns through which it is proposed to construct the 
road may appear and be heard upon the hearing of the 
application. The board may take testimony in respect 
thereto, or authorize it to be taken by a committee of the 
board and may adjourn the hearing from time to time. 
After hearing the application the board may, by an order 
entered in its meetings,* authorize the corporation to con- 
truct such bridge or road and to take the real estate neces¬ 
sary for that purpose, and a copy of the order certified by 
the clerk of the board shall be recorded by the corporation 
in the office of the clerk of the county in which such 
bridge or road or any part thereof is to be located before 
any act shall be done under it. 

See County Law, § 62, Appendix. 

§ 124. Commissioners to Aay out road .—If the appli¬ 
cation for the construction of any such road is granted, 


* So in the original. 





The Highway Law of New York. 


241 


Possession of and title to real estate. 


the board shall appoint three disinterested persons, not 
owners of real estate in any town, through which the road 
is to be constructed or in any adjoining town, commissioners 
to lay out the road. They shall take the constitutional 
oath of office, and without unnecessary delay lay out the 
route of such road in such manner as in their opinion will 
best promote the public interests; they shall hear all per¬ 
sons interested who shall apply to be heard and may take 
testimony in relation thereto, and shall cause an accurate 
survey and description of the road and the necessary build¬ 
ings and gates, signed and acknowledged by them to be 
recorded in the clerk’s office of the county. If the road 
is situated in more than one county, such survey and 
description shall be separate as to that portion in each 
county and filed in the office of the clerk of the county in* 
which it relates. The corporation shall pay each commis¬ 
sioner three dollars for every day spent by him in the per¬ 
formance of his duties and his necessary expenses. 


§ 125. Possession of and title to real estate .—The 
route so laid out and surveyed by the commissioners shall 
be the route of the road, and the corporation may enter 
upon, take and hold for the purposes of its incorporation, 
the lands described in such survey as necessary for the 
construction of its road, and requisite buildings and gates. 
If for any cause the owner of any of such lands shall be 
incapable of selling the same or his name or residence can 
not, with reasonable diligence be ascertained or the cor¬ 
poration is unable to agree with the owner for the purchase 
thereof it may acquire title thereto by condemnation. 


§ 126. Use of turnpike road by plank-road .—No 
plank-road shall be made on the roadway of any turnpike 


* So in the original. 
16 





242 


The Highway Law of New York. 


Use of turnpike road by plank-road. 


corporation without its consent, except for the purpose of 
crossing the same. Any plank-road corporation may con¬ 
tract with any connecting turnpike corporation for the 
purchase of its roadway or a part thereof, or of its stock, 
on such terms as may be mutually agreed upon, and such 
stock, if purchased, shall be held by the plank-road cor¬ 
poration for the benefit of its stockholders in proportion to 
the amount of stock held by each, and a transfer of stock 
in the plank-road corporation shall carry with it its pro¬ 
portional amount of the turnpike stock, and entitle the 
holder thereof to his share of the dividends derived there¬ 
from. After the purchase of the whole of the stock of any 
such turnpike corporation by such plank-road corporation 
the directors of the plank-road corporation shall be the 
directors of the turnpike corporation, and shall manage its 
affairs and render an account of the same annually to the 
stockholders of the plank-road corporation. If the plank- 
road corporation is dissolved, its stockholders at the time 
of dissolution shall be the stockholders of the turnpike cor¬ 
poration in proportion to the amount of stock held by each, 
and the stock of the turnpike corporation shall thereafter 
be deemed to be divided into shares equal in number to 
the shares of stock of the late plank-road corporation, and 
scrip therefor shall be issued accordingly to each of the 
last stockholders of the plank-road corporation, and the 
officers of the turnpike corporation shall be the same in 
number as provided for in its charter or certificate of 
incorporation, and shall be chosen by such former stock, 
holders of the plank-road corporation or their assigns. A 
corporation owning a turnpike road on or adjoining which 
a plank-road shall have been constructed may abandon 
that portion of its road on or adjoining the route of which 
a plank-road is actually constructed and used. 




The Highway Law of Hew York. 


243 


Width and construction of road. 


§ 127. Width and construction of road ,—Every 
such plank-road shall bo so constructed as to make, secure 
and maintain a smooth and permanent road, the track of 
which shall be made of timber, plank or other hard 
material forming a hard and even surface, and every such 
turnpike road shall be bedded with stone, gravel or such 
other material as may be found on the line thereof, and 
faced with broken stone or gravel, forming a hard and even 
surface with good and sufficient ditches on each side 
wherever practicable, and all such roads shall be laid out 
at least four rods wide and the arch or bed at least eighteen 
feet wide, and shall be so constructed as to permit carri¬ 
ages and other vehicles conveniently to pass each other, 
and to pass on and off such road where intersected with 
other roads. Any corporation which shall have once laid 
its road with plank may relay the same, or any part 
thereof, with broken stone, gravel, shells or other hard 
materials, forming a good and substantial road. Any 
plank-road or turnpike corporation may lay iron rails on 
its road suitable for the use of wagons and vehicles drawn 
by horses or animals over its road, but no other motive 
power shall be used thereon. 

§ 128. Construction of bridges; obstruction of rafts 
prohibited.— Every bridge constructed by any such cor¬ 
poration shall be built with a good and substantial railing 
or * sliding at least four and one-half feet high, and over 
any stream navigable by rafts the corporation shall keep 
the channel of the stream above and below the bridge free 
and clear from all deposits, formed or occasioned by the 
erection of the bridge, which shall in any wise obstruct 
the navigation thereof, and shall be liable to all persons 
unreasonably or unnecessarily delayed or hindered in 
passing the same for all damages sustained thereby. 


* So in the original. 





244 


The Highway Law of New York. 


Certificate of completion of road or bridge. 


Nothing in this act shall be construed to authorize the 
bridging of any river or water-course where the tide ebbs 
and flows, or any waters over which the federal authorities 
have any control, unless the consent of such federal au¬ 
thorities be first obtained; nor the construction of any 
bridge within the limits prescribed by any existing law 
for the erection or maintenance of any other bridge. 

Amended by L. 1892, ch. 6S6, by L. 1895, ch. 722, and by L. 1896, ch. 


§ 129. Certificate of completion of road or bridge . 
—When any such corporation Ishall ;have completed its 
bridge or road or any five consecutive miles thereof, it may 
apply to the commissioners of highways of each town in 
which the completed road or bridge is situated to inspect 
the same, and if a majority of the commissioners are sat¬ 
isfied that the road or bridge is made and completed as 
required by law and in a manner safe and convenient for the 
public use, they shall make a certificate to that effect, 
which shall be filed in the office of the county clerk. Each 
commissioner shall be paid by the corporation two dollars 
per day for his services and necessary expenses. 


§ 130. Gates, rates of toll; and exemption .—Upon 
filing such certificate such corporation may erect a toll- 
gate at such bridge or one or more toll-gates upon the road 
so inspected, and may demand and receive the following 
rates of toll, a printed list of which shall be conspicuously 
posted at or over each gate: If a bridge corporation, such 
sum as shall be from time to time prescribed by the board 
of supervisors of the county or counties in which the bridge 
is located. If a turnpike or plank-road, for every vehicle 
drawn by one animal, one cent per mile, and one cent per 
mile for each additional animal; for every vehicle used 




The Highway Law of New York. 


245 


Gates; rates of toll; and exemption. 


chiefly for carrying passengers, three cents per mile, and 
one cent per mile for each additional animal; for every 
horse rode, led or driven, three-quarters of a cent per mile; 
for every score of sheep or swine, one and one-half cents 
per mile, and for every score of neat cattle, two cents per 
mile. When diverging roads strike any plank-road or turn¬ 
pike at or near any toll-gate, the board of supervisors of 
the county may direct that the toll charge shall commence 
from the point of such divergence, and only for the dis¬ 
tance traveled on such turnpike or plank-road, but fractions 
of cents may be made units of cents in favor of the plank- 
road or turnpike corporation. The corporation may from 
time to time commute, but not for a longer period than 
one year at any one time, with any person whose place of 
abode shall adjoin or be near to the road for the toll pay¬ 
able at the nearest gate on each side thereof, and the com¬ 
mutation may be renewed from year to year. No tolls 
shall be charged or collected at any gate, from any person 
going to or from public worship, a funeral, school, town 
meeting or election at which he is a voter to cast his vote, 
a military parade which he is required by law to attend, 
any court which he shall be required to attend as a juror 
or witness, nor when going to or from his required work 
upon any public highway, nor when transporting troops in 
the actual service of the United States; and no toll from 
persons living within one-half mile of the gate by the 
most usual traveled road when not engaged in the trans¬ 
portation of other persons or property except that persons 
living within one mile of the gate, by the most usually 
traveled road, in an incorporated village of over six thous¬ 
and inhabitants, when not engaged in the transporation 
of the persons or property shall be exempt from the pay¬ 
ment of toll. 

Amended by L. 1893, eh. 538. 

See County Law, §§ 62, 73, Appendix. 




246 


The Highway Law of New York. 


Toll gatherers. 


§ 131. Toll gatherers .—Every such corporation may 
appoint toll gatherers to collect toll at each gate, who may 
detain and prevent from passing through the gate, any 
person riding, leading or driving animals or vehicles, sub¬ 
ject to the payment of toll, until the toll is paid, but if he 
shall unreasonably hinder or delay any traveler or pas¬ 
senger liable to the payment of toll, or shall demand or 
receive from any person more toll than he is authorized by 
law to collect, he shall forfeit to such person the sum of 
five dollars for every offense, and the corporation employ¬ 
ing him shall be liable for the payment thereof, and for 
any damages sustained by any person for acts done or 
omitted to be done by him in his capacity of toll gatherer, 
if, on recovery of judgment against the toll gatherer there¬ 
for, execution thereon shall be returned nulla bona. 


§ 132. Penalty for running a gate . — Any person 
who, with intent to avoid the payment of toll, shall pass 
any gate, without paying the toll required by law, or shall, 
with his team, carriage or horse, turn out of a turnpike or 
plauk-road and pass any gate thereon on ground adjacent 
thereto, shall forfeit for each offense the sum of ten dollars 
to the corporation injured. 


§ 133. Location of gates and change thereof —No 
such corporation shall erect any toll-gate, house, or other 
building within ten rods of the front of any dwelling house, 
barn or other out house, without the written consent of 
the owner, and the county judge of the county in which 
the same is located shall, on application, order any build¬ 
ing so erected to be removed, and if a majority of the com¬ 
missioners of highways of any town, in which a toll- 
gate shall be located, or in an adjoining town, shall deem 
the location of any gate unjust to the public interests by 




The Highway Law of New York. 


247 


Location of gates and change thereof. 


reason of the proximity of diverging roads or otherwise, 
they may, on fifteen days’ written notice to the president 
or secretary of the corporation, apply to the county court 
of the county in which the gate is located, for an order to 
alter or change its location. On hearing such application, 
and viewing the premises, if deemed necessary, the court 
may make such order in the matter as may be just and 
proper. Either party may, within fifteen days thereafter, 
appeal to the general term of the supreme court from such 
order, on giving such security as the county judge, mak¬ 
ing the order, may prescribe. Upon such appeal the su¬ 
preme court, on motion of either party and on due notice, 
shall appoint three disinterested persons who are not resi¬ 
dents of any town through or into which such road shall 
run, or to or from which it is the principal thoroughfare, or 
any adjoining town, as referees to hear, try and deter¬ 
mine the appeal. Such referees shall view the premises 
and the location of the gate, and hear the parties in the 
same manner as on the trial of an issue of fact by a referee 
in a civil action in the supreme court, and report their 
decison thereon and the reasons therefor, and the 
evidence taken thereon to the supreme court, and such 
court shall review the report and render judgment thereon 
as justice and equity shall require, which shall be final 
and conclusive. The referees shall be entitled to the same 
fees as referees in civil actions in the supreme court, to 
be paid in the first instance by the party in whose favor 
their report or decision shall be, and the supreme court 
shall award judgment therefor, with such costs and ex¬ 
penses as it may deem reasonable, to the successful party 
on the appeal, which judgment shall be entered with the 
order affirming or reversing the order appealed from, and 
may be enforced by execution as a judgment of a court of 
record. If the order of the county court is not appealed 
from, it may be enforced, as the court may direct, and 







248 


The Highway Law of New York. 


Inspectors; their powers and duties. 


the court may allow such costs as maybe deemed just and 
equitable. 

§ 134. Inspectors; their powers and duties .—The 
commissioners of highways of the several towns and the 
trustees or other officers in the incorporated cities and vil¬ 
lages of the state, who perform the duties of commission¬ 
ers of highways in such cities and villages, shall be 
inspectors of plank-roads and turnpikes, in their respec¬ 
tive towns, cities and villages. They shall inspect or cause 
to be inspected by one or more of them the whole of such 
turnpike or plank-roads as lies in their respective towns, 
villages or cities, at least once in each month, and when¬ 
ever written complaint shall be made to any inspector, 
that any part of such road lying in the town, city or vil¬ 
lage of such inspector is out of repair he shall, without 
delay, view and examine the part complained of. If such 
turnpike or plank-road shall be found to be out of repair 
or in condition not to be conveniently used by the public, 
such inspectors or either of them, or the one to whom 
such complaint shall have been made, shall give written 
notice to the toll-gatherer, or person attending the gate 
nearest the place out of repair or in bad condition to cause 
the same to be put in good condition before a time therein 
designated not less than forty-eight hours after the service 
of such notice, or to appear before the county court of 
the county in which that part of the road is situated, at a 
time in said notice designated, and show cause why such 
turnpike or plank-road should not be repaired or put in 
good condition as in said notice directed. If such road 
shall not have been theretofore repaired or put in good 
condition as in said notice directed then the county court 
shall, upon the return of such notice hear the allegations 
and proofs of the parties, and it shall always be open for 
that purpose; and if the court shall find such road to be 






The Highway Law of New York. 


249 


Inspectors ; their powers and duties. 


out of repair or in bad condition it may give additional 
time for the repair thereof, or it may order the gate near¬ 
est the place out of repair or in bad condition to be imme¬ 
diately upon the service of the order, or at a time therein 
specified, thrown open and to remain open until the road 
shall be fully repaired at the place directed to be repaired 
as aforesaid. Such order shall be served in the manner 
therein specified upon the keeper of the gate so ordered 
to be thrown open. Any inspector within the town, city 
or village where such road has been repaired pursuant to 
notice or order as aforesaid, may certify that such road 
has been duly repaired. The fees of the inspector for the 
services above mentioned shall be two dollars for each 
day actually employed, together with necessary witnesses 
fees, to be paid by the corporation or person whose road is 
so inspected, if the gates are ordered to be thrown open, 
but otherwise to be charged, audited and paid in the same 
manner as other fees of commissioners of highways. Any 
inspector who neglects to perform his duties shall forfeit 
to the party aggrieved the sum of twenty-five dollars for 
each offense. Every keeper of a gate ordered to be thrown 
open, not immediately obeying such order or not keeping 
such gate open until such road shall be fully repaired or 
until a certificate that such road has been duly repaired 
is granted, or hindering or delaying any person in pass¬ 
ing, or taking any tolls from any person passing such gate 
during the time it ought to be open, shall forfeit to the 
party aggrieved the sum of ten dollars for each offense, and 
the corporation or person owning the road, who shall 
refuse or neglect to obey the requirements of any such 
order shall forfeit to the people of the state the sum of two 
hundred dollars for each offense. 


Amended by L. 1896, ch. 343. 




250 


The Highway Law of New York. 


Change of route ; extension and branches. 


§ 135. Change of route ; extension and branches . 
—Auy such corporation may, with the written consent of 
the owners of two-thirds of its capital stock and of a ma¬ 
jority of the commissioners of highways of the town or 
towns, in which any change or extension is proposed to 
be made, construct branches to its main line or extend the 
same, or change the route of its road or any part thereof, 
and acquire the right of way for the same in the same 
manner as for the original or main line, and may, by any 
of its officers, agents or servants, enter upon lands for the 
purpose of making any examination, survey or map, doing 
no necessary damage; but before entering upon, taking or 
using such lands,the corporation shall make a survey and 
map thereof, designating thereon the lands of each owner 
or occupant intended to be taken or used, which shall be 
signed and acknowledged by the engineer making the 
same and the president of the corporation and filed in 
the office of the clerk of the county in which the land is 
situated. 

§ 136. Milestones, guide-posts and hoist-gates .—A 
mile-stone or post shall be erected and maintained by 
every such corporation on each mile of its road, on which 
shall be fairly and legibly marked or inscribed the distance 
of such stone or post from the place of commencement of 
the road, and when the road shall commence at the end 
of any other road having mile-stones or posts on which 
the distance from any city or town is marked, a continua¬ 
tion of that distance shall in like manner be inscribed. A 
guide-post shall also be erected at the intersection of 
every public road leading into or from every turnpike or 
plank-road, on which shall be inscribed the name of the 
place to which such intersecting road leads in the direc¬ 
tion to which the name on the guide-post shall point. 
No plank-road or turnpike corporation shall erect or put 






The Highway Law of New York. 


251 


Location of office of corporation. 


up any hoist-gate on its road. Any person who shall 
wilfully break, cut down, deface or injure any mile-stone, 
post or gate on such road, or dig up, or injure any part 
of the road, or anything belonging thereto, shall forfeit to 
the corporation twenty-five dollars for every offense, in 
addition to the damages resulting from the act. 


§ 137. Location of office of corporation .—Within 
two weeks after the formation of any such corporation its 
directors shall designate some place within a county in 
which its road or bridge, or some part thereof shall be 
contructed as its office, and shall give public notice thereof 
by publishing the same once in each week for three suc¬ 
cessive weeks in a public newspaper in the county, and 
shall file a copy of the notice in the office of the county 
clerk of every county in which any part of the road or 
bridge is, or is to be contructed, and if the location of such 
office shall be changed, like notice of the change shall be 
published and filed, in which shall be specified the time 
of making the change, before it shall take effect. Every 
notice, summons or other paper required by law to be 
served on the corporation may be served by leaving the 
same at such office with any person having charge thereof, 
at any time between nine o’clock in the forenoon, and 
five o’clock in the afternoon of any day except Sunday or 
a legal holiday. 


§ 138. Consolidation of corporations and sale of 
franchise .—Any two or more of such corporations may 
consolidate into one corporation on such terms as the per¬ 
sons owning two-thirds of the stock of each corporation 
may agree upon, and may change the name of the road 
on filing in the office where the original certificates of 
incorporation were filed, a certificate containing the names 




252 


The Highway Law of New York. 


Surrender of road. 


of the roads so consolidated, and the name by which such 
road shall thereafter be known. Any plank-road or turn¬ 
pike corporation may, with the consent of the owners of 
sixty per cent, of its stock, sell, and convey the whole or 
any part of its rights, property and franchises to any other 
domestic plank-road or turnpike corporation, and such 
sale and conveyance shall vest the rights, property and 
franchises thereby transferred in the corporation to which 
they are conveyed for the term of its corporate existence. 

§ 139. Surrender of road .— The directors of any 
plank-road or turnpike corporation *way abandon the 
whole or any part of its road at either or both ends thereof, 
upon obtaining the written consent of the stockholders? 
owning two-thirds of the stock of the corporation, which 
surrender shall be by a declaration in writing to that 
effect, attested by the seal of the corporation and acknowl¬ 
edged by the president and secretary. Such declaration 
and consent shall be filed and recorded in the clerk's office 
of the county in which any part of the road abandoned 
shall be situated, and the road so abandoned shall cease to 
be the road or the property of the corporation, and shall 
revert and belong to the several towns, cities and villages 
through which it was constructed, and the corporation 
shall no longer be liable to maintain it or to be assessed 
thereon, or permitted to collect tolls for traveling over the 
same, but without impairing its right to take toll on the 
remaining part of its road at the rate prescribed by law. 
And whenever any turnpike or plank-road company, now 
existing or hereafter created, shall abandon all or any 
part of its road within this state, in the manner above pro¬ 
vided, or whenever its charter or franchise of such com¬ 
pany shall be annulled or revoked, the road of such turn- 


* So in the original. 





The Highway Law of New York. 


253 


Taxation and exemption. 


pike or plank-road company shall revert to and belong to 
the several towns, cities and villages through which such 
road shall pass. And it shall be the duty of the several 
towns, cities and villages acquiring any road under this 
act to immediately lay out and declare the same a free 
public highway. And it shall be the duty of the several 
towns, cities and villages, to maintain and work every road 
acquired under the provisions of this act in the same man¬ 
ner as the other roads of such towns, cities and villages 
are maintained and worked. And any town, city or village 
may borrow money in the manner provided by law for the 
purpose of improving or repairing the same. 

Amended by L. 1896, ch. 964. 

§ 140. Taxation and exemption .—So much of any 
bridge or toll-house of any bridge corporation as may be 
within any town, city or village, shall be liable to tax¬ 
ation therein as real estate. Toll-houses and other fix¬ 
tures and all property belonging to any plank-road or 
turnpike corporation shall be exempt from assessment and 
taxation for any purpose until the surplus annual receipts 
of tolls on its road over necessay repairs and a suitable 
reserve fund for repairs or relaying of plank, shall exceed 
seven per cent per annum on the first cost of the road. 
If the assessors of any town, village or city and the cor¬ 
poration disagree concerning any exemption claim, the 
corporation may appeal to the county judge of the county 
in which such assessment is proposed to be made, who 
shall, after due notice to both parties, examine the books 
and vouchers of the corporation, and take such further 
proof as he shall deem proper, and decide whether such 
corporation is liable to taxation under this section, and 
his decision shall be final. 




254 


The Highway Law of New York. 


Hauling logs and timber. 


§ 141. Hauling logs and timber .—Any person who 
shall draw or haul or cause to be drawn or hauled, any 
logs, timber or other material upon the bed of any plank 
or turnpike road, unless the same shall be entirely elevated 
above the surface of the road on wheels or runners, and 
the road-bed shall be injured thereby, or who shall do or 
cause to be done an act by which the road-bed, or any 
ditch, sluice, culvert or drain appertaining to any turn¬ 
pike or plank-road shall be injured or obstructed, or shall 
divert or cause to be diverted, any stream of water so as 
to injure or endanger any part of such road, shall forfeit 
to the corporation the sum of five dollars for every offense 
in addition to the damages resulting from the wrongful 
act. 


§ 142. Encroachment of fences . — Whenever the 
president or secretary of any turnpike or plank-road cor¬ 
poration shall notify any inspector of such roads in the 
county where situated that any person is erecting or has 
erected any fence or other structure upon any part of the 
premises lawfully set apart for any such turnpike or plank- 
road, the inspector shall examine into the facts and order 
the fence or other structure to be removed if it shall appear 
to be upon any part of any such road, and any person 
neglecting or refusing to remove the same within twenty 
days or such further time not exceeding three months, as 
may be fixed by the inspector, shall forfeit to the corpora¬ 
tion the sum of five dollars for every day, during which 
the fence or other structure shall remain upou such road, 
but no such order shall require the removal of any fence, 
previously erected, between the first day of December and 
the first day of April. 

§ 143. Penalty for fast driving over bridges .—Any 
plank-road, turnpike or bridge corporation may put up and 




The Highway Law of New York. 


255 


Acts of directors prohibited. 


maintain at conspicuous places at each end of any bridge, 
owned or maintained by it, the length of whose span is 
not less than twenty-five feet, a notice with the following 
words in large characters: '‘One dollar fine for riding or 
driving over this bridge faster than a walk.” Whoever 
shall ride or drive faster than a walk, over any bridge, 
upon which such notice shall have been placed, and shall 
then be, shall forfeit to the corporation the sum of one 
dollar for everv such offense. 

§ 144. Acts of directors prohibited .—No director of 
any such corporation shall be concerned, directly or indi¬ 
rectly, in any contract for making or working any road 
belonging to it during the tima he shall be a director. No 
contractor for the making of such road, or any part thereof, 
shall make a new contract for the performance of his work, 
or any part of it, other than by hiring hands, teams, car¬ 
riages or utensils to be superintended and paid by himself, 
unless such new contract and its terms be laid before the 
board of directors and be approved by them. 

g 145. Actions for penalties .—No action to recover 
any penalty against any turnpike or plank-road corpora¬ 
tion, shall be commenced or maintained against it, or any 
of its officers or agents, unless commenced within thirty 
days after the penalty was incurred. 


§ 146. Proof of incorporation . — In any action 
brought by or against any domestic turnpike or plank- 
road corporation, which shall have been in actual opera¬ 
tion, and in possession of a road upon which it has taken 
toll for five consecutive years, next preceding the com¬ 
mencement of the action, parol proof of such corporate 
existence and use shall be sufficient to establish the incor- 




256 


The Highway Law of New York. 


When stockholders to be directors. 


poration of the corporation, for all the puposes of the 
action, unless the opposing party shall set up a claim in 
his complaint or answer duly verified of title in himself to 
the road, or some part thereof stating the nature of his title 
and right to the immediate possession and use thereof. 


§ 147. When stockholders to be directors .—When 
the whole number of stockholders in any turnpike or plank- 
road corporation shall not exceed the number of directors 
specified in the certificate of incorporation, each stock¬ 
holder shall be a director of such corporation, and the 
stockholders shall constitute the board of directors, what¬ 
ever may be their number, and a majority thereof shall 
be a quorum for the transaction of business. 


§ 148. j Dissolution of corporation .—Every turnpike, 
plank-road or bridge corporation may be dissolved by the 
legislature when, by the income arising from tolls, it shall 
have been compensated for all moneys expended in pur¬ 
chasing, making, repairing and taking care of its road, 
and have received in addition thereto an average annual 
interest at the rate of ten per cent., and on such dissolu¬ 
tion all the rights and property of the corporation shall 
vest in the people of the state. Any such corporation, 
which shall not within two years from the filing of its cer¬ 
tificate of incorporation, have commenced the construction 
of its road or bridge and actually expended thereon ten 
per cent of its capital, or which shall not within five 
years from such filing have completed its road or bridge, 
or, in case such bridge is destroyed, shall not rebuild the 
same within five years, or which, for a period of five con¬ 
secutive years shall have neglected or omitted to exercise 
its corporate functions shall be deemed dissolved. Where 
the corporation has neglected or omitted for five years to 





The Highway Law of New York. 


257 


Towns must pay for lands not originally a highway. 


exercise its corporate functions, and its road-bed or right 
of way shall have been used as a public highway for that 
period, or where any such corporation shall have become 
dissolved, or where the road or any part of it of a turn¬ 
pike or plank-road corporation, or the bridge of any bridge 
corporation, shall have been discontinued, such road-bed 
or right of way, and such discontinued road or bridge, and 
the road or bridge of any such dissolved corporation, shall 
thereafter be a public highway, with the same effect as if 
laid out by the commissioners of highways of the town, 
and be subject to the laws relating to highways and the 
erection, repairing and preservation of bridges thereon. 

See County Law, § 80, Appendix. 


§ 149. Towns must pay for lands not originally a 
highway .—When the corporate existence of any plank- 
road or turnpike corporation shall have ceased by limita¬ 
tion of time, or where any judgment of ouster or dissolu¬ 
tion, or restraining the exercise of its franchise has been 
rendered in any action against it, such portion of the line 
of its road as was built over lands which were originally 
purchased by it and not previously a public highway shall 
not be used as a public highway, nor be taken possession 
or control of by the town in which the same may be, or by 
any of the authorities thereof or be claimed or worked or 
used as a public highway until the town shall pay over 
to the treasurer, receiver or other legal representatives of 
the corporation, or its assigns, the principal sum of the 
amounts paid by it for such lands, as shown by the deeds 
of conveyance thereof to it, and every such judgment shall 
provide accordingly. Such payments shall be made within 
three months after the expiration of the corporate exis¬ 
tence of the corporation, or if any such judgment has been 
or shall be rendered within three months after service of 
17 




258 The Highway Law of New York. 


Highway labor upon line of plank-road or turnpike. 


written notice of the entry thereof on the supervisor of the 
town, and the person receiving such payment shall exe¬ 
cute a proper discharge therefor and a conveyance to the 
town of all the title and interest which the corporation had 
in such lands at the expiration of its corporate existence. 

§ 150. Highway labor upon line of plank-road or 
turnpike .—Every person liable for highway labor living 
or owning property on the line of any plank-road or turn¬ 
pike may, on written application to the commissioners of 
highways of the town, on any day previous to making out 
the highway warrant by the commissioners, be assessed 
for the highway labor upon his property upon the line of 
such road, in the discretion of the commissioners to be 
worked out upon the line of such road as a separate road 
district, and the commissioners shall make a separate list 
of the persons and property so assessed, as for a separate 
road district, and deliver the same to one of the directors 
of the corporation owning such road, who shall cause such 
highway labor to be worked out on such road in the same 
manner that oversees* of highways are required to do, 
and such directors shall possess the powers and have the 
authority to compel the performance of such highway 
labor for the payment of the tax therefor as such over¬ 
sees * now have bylaw, and shall make like returns to 
the commissioners of highways, and any person so assessed 
may commute for the highway labor assessed upon him or 
his property by paying the sum now fixed by law as the 
commutation for such highway labor. 

§ 151. Extension of corporate existence .—No turn¬ 
pike, plank-road or bridge corporation shall extend its 
corporate existence, pursuant to the provisions of the 

* So in tlie original. 









The Highway Law of New York. 


259 


Extension of corporate existence. 


general corporation law, without the written consent of 
the persons owning at least two-thirds of its capital stock, 
nor without the consent of the board of supervisors of each 
county in which any part of its road or bridge is situated, 
which consent shall be given by a resolution of the board 
adopted at any regular or special meeting, and a copy of 
such resolution, certified by the clerk of the board, or 
verified by the affidavit of some member thereof, together 
with such consent of the stockholders, and a statement 
verified by the affidavit of the president and treasurer of 
the corporation, showing the actual capital expended upon 
the construction of the road, exclusive of repairs, the 
name of each town or ward through or into which the road 
passes, and, if any part of the road shall have been aban¬ 
doned, the actual cost of the remaining part, exclusive of 
repairs, shall be filed with the certificate of the contin¬ 
uance of the corporate existence. No further abandon¬ 
ment of any road belonging to a corporation whose cor¬ 
porate existence has been so extended shall be made, 
except with the consent of a majority of the board of 
supervisors of the county in which the abandoned portion 
of the road may lie, which consent shall be filed in the 
office of the clerk of the county. 




260 


The Highway Law of New York. 


Navigation law. 


NAVIGATION LAW. 

ARTICLE V. 

Eivers and Streams as Public Highways. 

Section 70. Dams and bridges. 

71. Booms, etc., to be opened on notice, penalty for failure. 

72. Shutes and aprons in connection with dams, etc., damages 

to be paid. 

73. Marks on logs and timber to be recorded. 

74. Persons prohibited from landing logs, etc. 

75. Undertakings of persons floating lumber and logs. 

76. Application of article. 

Section 70. Dams and bridges .—No dam shall be 
erected on any river or stream in this state, recognized by 
law or use as a public highway for the purpose of floating 
and running lumber, logs or other timber, over or upon 
the same, unless there be built in such dam an apron, at 
least fifteen feet in width, in the middle of the current of 
such river or stream, of a proper slope for the safe pass¬ 
age of lumber, logs and other timber. No bridge shall be 
built over any such river or stream in such a manner as 
to obstruct or prevent the free and uninterrupted passage 
of lumber, logs and other timber down and along such 
river or stream. 

§ 71. Booms, etc., to be opened on notice; penalty 
for failure .—Every person who shall build any boom or 
other obstruction in the waters of any river or stream, for 




The Highway Law of New York. 261 

"" ■ ' ■ -- ■ .i 

Shutes and aprons in connection with dams, &c., damages to be paid. 


the purpose of stopping or securing lumber, logs or other 
timber, shall within ten days after the receipt of a written 
notice from any person who shall have lumber, logs or 
other timber to transport on such river or stream, open 
such boom or remove such obstruction or part thereof so 
as to permit the assorting and passage of such lumber, 
logs and other timber through and down such river or 
stream. Ever}? person who wilfully obstructs, by booms 
or otherwise, the channel of any river or stream so as to 
hinder or delay the free passage of lumber, logs or timber 
over or through the same, shall be liable to a penalty of 
fifty dollars for each day of the continuance of such ob¬ 
struction, to be recovered by the person aggrieved thereby, 
and in addition to such penalty, shall be liable for all 
damages caused by such obstruction. 

§ 72. Shiites and aprons in connection with dams, 
etc., damages to be paid .—Any person desiring to float 
or run lumber, logs or timber down a river or stream, 
recognized by law or use as a public highway, may con¬ 
struct a shute or apron in connection with any dam across 
such river or stream, and may reconstruct any booms or 
other works already constructed in, over or across such 
river or stream, in such manner as to allow lumber, logs 
or other timber to pass the same, and may remove obstruc¬ 
tions in such river or stream and construct such other 
piers, booms or other works as may be necessary for the 
passage of lumber, logs or other timber over and through 
the channels of such river or stream. In such construc¬ 
tions no injury or damage shall be done to the owner or 
occupant of any such booms, dams or other works, or to 
the owner or occupant of any land on which such piers, 
booms or other works are constructed, or lands flooded 
thereby. Every such person shall pay to the owner or 
occupant of such lands all damages he may sustain by 





262 


The Highway Law of New York. 


Marks on logs and timber to be recorded. 


reason of the construction of such piers, booms, or other 
works, or the flooding of lands thereby. In case the 
amount of such damages can not be agreed upon by the 
parties interested, the same shall be appraised by three 
commissioners to be appointed by the county judge of the 
county in which the owner or occupant claiming damages 
shall reside, on the application of any person interested in 
the appraisal of such damages, on three days’ notice in 
writing to the opposite parties of the time and place of 
making such application. Any person making claim for 
damages under this article, shall apply within one year 
after the occurrence of the same, or be debarred from re¬ 
covering the same. This article shall apply to all booms 
or other works heretofore or hereafter constructed, but 
shall not be constructed so as to impair or abridge any 
private or individual rights, except so far as may be nec¬ 
essary for the improvement of rivers and streams, for 
floating or running lumber, logs or other timber down the 
same. 

§ 73. Marks on lof/s and timber to be recorded .— 
Every person who shall run any logs or timber down any 
river or stream recognized by law or use as a public high¬ 
way, shall select some mark different from any mark 
previously recorded, and shall put the same on each log 
or stick of timber in some conspicuous place, and shall 
cause such mark to be recorded in the county clerk’s office 
of each county in or through which such river or stream 
runs. The county clerk shall be entitled to the sum of 
fifty cents for recording such mark, to be paid by the per¬ 
son having the same recorded, and a copy of said entry, 
certified by the clerk, shall be presumptive evidence that 
the logs or timber so marked are the property of the per¬ 
son by whom such mark was selected and recorded. 




The Highway Law of New York. 


263 


Persons prohibited from landing logs, etc. 


§ 74. Persons prohibited f rom landing logs, etc .— 
No person shall stop, take up or draw to, or lodge on the 
shore of any river or stream used for floating logs, timber 
or lumber, or on any island therein, any lumber, logs, 
timber, boards or planks floating in such river or stream, 
without the consent of the owner thereof. Any person 
violating the provisions of this section shall for each vio¬ 
lation forfeit to the person aggrieved thereby the sum of 
ten dollars, and in addition thereto shall be liable to the 
owner of such logs, timber or lumber for all damages sus¬ 
tained thereby. 

§ 75. Undertakings of persons floating lumber 
and logs .—Every person intending to float or run lumber, 
logs or other timber upon any river or stream recognized 
by law or use as a public highway, shall execute a bond to 
the people of the state with sufficient sureties in the sum 
of five thousand dollars as an indemnity against all loss 
and damage that may be caused to any property, by reason 
of the use of such river or stream as provided in this 
article, and such bond may be sued upon by any person 
suffering such loss or damage. Such bond shall be 
approved by the county judges of the counties through 
which such river or stream flows and shall be filed in one 
of the offices of the clerks of such counties, and certified 
copies thereof in the other of such offices. No person shall 
float or run any lumber, logs or timber upon such streams 
until such bond shall have been executed, approved and 
filed. 


§ 76. Application of article .—This article shall not 
apply to the Hudson river, the Alleghany river and its 
tributaries, nor the Delaware river and its tributaries, 
nor the waters located in Franklin county, nor the Beaver 




264 


The Highway Law of New York. 


Application of article. 


river and its tributaries, nor the Oswegatchie and its trib¬ 
utaries, nor the Grass river and its tributaries, nor the 
Racquette river and its tributaries, nor the West Canada 
creek and its tributaries, nor the Black river and its tribu¬ 
taries above its junction with the Moose river, nor the 
waters located in Lewis county used for floating or driving 
logs or lumber; nor be construed to repeal any existing 
law now applicable to any creek or river in this state. 




The Highway Law of New York. 


265 


Canal law. 


CANAL LAW. 


§ 110. Alteration of roads .—If the superintendent of 
public works, or assistant superintendent having charge of 
the work, deems it necessary to discontinue or alter any 
part of a public road, because of its interference with the 
proper location or construction of any work on the canals, 
either of construction, repairs or improvement, he shall 
direct such discontinuance or alteration to be made, and 
file an accurate description of the part of such road so dis¬ 
continued and laid out anew in the office of the town clerk 
of the town in which the same is situated; and from the 
time of filing such description, such road shall be so 
altered. 

The passage of the part of such road so discontinued or 
altered shall not be obstructed until such superintendent or 
his assistant opens and works the part of such road so laid 
out anew, as to render the same passable. The written 
certificate of a justice of the peace of the county in which 
such road is situated that the part so laid out anew has 
been so opened and worked, shall be sufficient evidence 
thereof. Every alteration made by any engineer on any 
public road upon either of the canals before the first day 
of January, 1828, shall be deemed valid in law from the 
time of such alteration. 

§ 111. Farm >and road bridges *—The superintendent 
of public works is authorized and required to construct 
and hereafter maintain, at the public expense, road and 
street bridges over the canals, in all places where such 
bridges were constructed prior to the 20th day of April, 






266 


The Highway Law of Yew Yoek. 


Commutation for bridges. 


1839, if, in his opinion, the public convenience requires 
that they should be continued, whether theretofore main¬ 
tained at the expense of the state or of the towns, villages 
and cities where they are situate. 

The superintendent is authorized to construct farm 
bridges over such canals when the same, in his opinion, 
are reasonably required, having reference to the accom¬ 
modation of the owners of the land and a due regard to 
economy to the state and the convenience of navigation. 
But this provision does not abridge the power of the super¬ 
intendent in relation to streets, roads and bridges as pre¬ 
scribed by law T on the date above specified. 

When a farm bridge is constructed in lieu of one there¬ 
tofore maintained by the owner of the land and damages 
are claimed by such owner for the appropriation of lands 
or other injury done in the enlargement of the canals, the 
benefit derived by the owner by being relieved from the 
expense of maintaining the farm bridge over the canal 
shall be set off against any damages so claimed. 

§ 112. Commutation for bridges .—The superintend¬ 
ent of public works may commute with owners and claim¬ 
ants of bridges over any canal, by paying such owner or 
claimant such sum in lieu of a bridge as may be agreed on 
between the claimant and the superintendent. If, in the 
opinion of the superintendent, a bridge should not be re¬ 
built, and the amount to be so paid be not agreed upon, 
the bridge shall not be built, but the damages sustained 
by such owner by being deprived of such bridge, and 
which the state under all the circumstances ought of right 
to pay, shall be ascertained in the same manner as dam¬ 
ages for the appropriation of real property for the use of 
the canals, and paid by the superintendent. If the dam¬ 
ages be claimed for the deprivation of a bridge which the 
claimant had before constructed or maintained, the cir- 




The Highway Law of New York. 


267 


Private road in lieu of bridge. 


cumstance of his being equitably bound to contribute pro¬ 
portionately towards the construction and maintenance of 
an enlarged bridge shall be taken into consideration and 
a proper amount on that account shall be set off against 
any damage to which the claimant might otherwise be 
entitled. 


§ 113. Private Toad in lien* of bridge .—If the super¬ 
intendent of public works can not agree with the owner of 
a farm bridge over a canal, as to the amount of commuta¬ 
tion, in any case where such superintendent is of opinion 
that the state should erect such bridge, and such superin¬ 
tendent determines that a private road through adjoining 
lands will sufficiently accommodate such owner and that 
the same can be laid out with economy to the state, he 
may apply to the commissioners of highways of the town 
to lay out a private road for the accommodation of the 
owner, in the manner prescribed by law for laying out 
private roads, and pay to the owner of the lands through 
which the same is laid out the damages assessed. 


g 114. Iron bridges, —When the construction of an 
iron bridge over a canal is ordered by the legislature, or 
required by the superintendent of public works, the state 
engineer shall prepare a plan and general specifications 
for the construction of such bridge and submit the plan to 
the canal board. On obtaining the certificate of adoption 
by the canal board he shall file the plan so approved in his 
office and a copy thereof in the office of the superintendent 
of public works, who shall then advertise for proposals 
for the work, and award the contract to the lowest respon¬ 
sible bidder. 


* So in the original. 





268 


The Highway Law of New York. 


Models and location of bridges. 


§ 115. 31odels and location of bridges .—No bridge 
shall be constructed across any canal without first obtain¬ 
ing for the model and location thereof the written consent 
of the superintendent of public works or of a superinten¬ 
dent of repairs upon that line of the canal which is inter¬ 
sected by the road or highway of which the bridge is to be 
a part. 

Every person undertaking to construct or locate any 
such bridge without such consent and placing any 
materials for that purpose upon either bank of the canal or 
upon the bottom thereof, shall forfeit to the state the sum 
of fifty dollars, and the superintendent of public works or 
any assistant superintendent, superintendent of repairs or 
engineer may remove all such materials as soon as they 
are discovered, wholly without the banks of the canal. 

§ 116. J Restriction on the construction of farm and 
road bridges .—A person shall not be entitled to demand 
a farm bridge across a canal or feeder where the necessity 
or convenience of such bridge shall have arisen from the 
division or acquisition of property subsequent to the loca¬ 
tion of such canal or feeder. A street or road bridge 
shall not be constructed by the superintendent of public 
works over a canal or feeder, except upon such streets or 
roads as were laid out, worked or used previously to the 
construction of the canal or feeder by which such street or 
road was or is obstructed; and when bridges are con¬ 
structed or reconstructed upon any such streets or roads, 
the cost to the state shall in no case be more than is 
required to preserve in a safe and susbtautial manner the 
continuity of such streets or roads so as not to unneces¬ 
sarily impair their usefulness. 

When a bridge of a more costly nature is desired by the 
local authorities of a city, town, or village within whose 
corporate limits a bridge is to be built or rebuilt, the super¬ 
intendent of public works,on presentation to him by such 




The Highway Law of Yew Yoke. 


269 


Construction of bridges by municipal corporations. 


local authorities of plans and specifications for such 
bridge, approved by the state engineer, shall estimate and 
determine the proportion of the cost, which, in order to 
preserve the continuity of such streets and roads, the state 
ought equitably to pay, and file such estimate and deter¬ 
mination in his office and a duplicate thereof in the office 
of the clerk of such city, town or village, and no more 
than such proportion of the cost shall be appropriated by 
the legislature for such purpose, and then only on con¬ 
dition that such city, town or village shall pay the remain¬ 
der of such cost. If a priavte road or public highway is 
laid out by legal authority in such direction as to require 
the erection of a new bridge over a canal for the accommo¬ 
dation of the road, such bridge shall be so constructed and 
forever maintained at the expense of the town'or city in 
which it shall be situated. 

§ 117. Construction of bridges by municipal cor¬ 
porations .—A town, village or city upon the line of any 
canal, at its own cost and expense, with the consent and 
under the direction of the superintendent of public works, 
may erect and maintain at any point within its limits, 
where a bridge is not maintained by the state, such bridge 
across such canal, of such kind, dimensions and materials, 
and with such approaches as such superintendent approves, 
at the proper cost and expense of such town,village or 
city, at any point where there is not now a bridge built 
and maintained by the state. If such bridge shall be a 
hoist, lift or swing-bridge, and requires the constant atten¬ 
dance of bridge tenders to manage and work it, the super¬ 
intendent may appoint and remove such bridge tenders as 
he deems necessary, and the expenses and wages thereof 
shall be paid to the superintendent by such town or village 
when he may require it, to be paid by him to such bridge 
tenders, and all the cost of material, power or tools neces- 





270 


The Highway Law of New York. 


Construction of lift, hoist or swing-bridge by city. 


sary for the tending of such bridge shall be paid for by 
such town or village on demand therefor by the superin¬ 
tendent. 


§ 118. Construction of lift 9 hoist or swing-bridge 
by city 0 —The common council of any city may provide by 
ordinance for the erection of a lift, hoist or swing-bridge 
over a canal at any street in such city, and, if the superin¬ 
tendent of public works consents to such erection, in 
writing, filed with the clerk of such common council, may 
levy and assess the cost of the construction of such bridge 
on the property benefited thereby. Such bridge shall be 
built, operated and maintained under the supervision and 
control of such superintendent, but at the expense of such 
city or of the property adjudged by the common council 
thereof to be so benefited. 

§ 176. 

A person who leads, rides or drives any horse or mule 
faster than a walk over any bridge belonging to or under 
the control of the state, over any canal, canal feeder, 
stream or river thereof, or drives any cattle across any 
such bridge at a faster rate than a walk, or permits more 
than twenty-five cattle to be upon such bridge at any one 
time, shall forfeit to the state the sum of fifteen dollars, 
to be sued for by the superintendent of canal repairs, and 
when recovered to be accounted for by him to the commis¬ 
sioners of the canal fund. 






The Highway Law of New York. 


271 


Railroad law. 


RAILROAD LAW. 


§ 4. Additional powevs conferred .—Subject to the 
limitations and requirements of this chapter, every rail¬ 
road corporation, in addition to the powers given by the 
general and stock corporation laws, shall have power. 


4. Intersection of streams, highways, plank-roads, 
turnpikes and canals .—To construct its road across, 
along or upon any stream, water-course, highway, plank- 
road, turnpike, or across any of the canals of the state, 
which the route of its road shall intersect or touch. 


§ 11. Intersection of highways, additional lands 
for .—No railroad corporation shall erect any bridge or 
other obstruction across, in or over any stream or lake* 
navigated by steam or sail boats at the place where it may 
be proposed to be erected, nor shall it construct its road in, 
upon or across any street of any city without the assent of 
the corporation of such city, nor across, upon or along any 
highway in any town or street in any incorporated village, 
without the order of the supreme court of the district in 
which such highway or street is situated, made at a special 
term thereof, after at least ten days’ written notice of 
the intention to make application for such order shall have 
been given to the commissioners of highways of such 
town, or board of trustees of the village in which such 
highway or street is situated. Every railroad corporation 
which shall build its road along, across or upon an} r 
stream, water-course, street, highway, plank-road or 




272 


The Highway Law of New York. 


Corporation may lay down railroad tracks. 


turnpike, which the route of its road shall intersect or 
touch, shall restore the stream or water-course, street, 
highway, plank-road and turnpike, thus intersected or 
touched, to its former state, or to such state as not to 
have unnecessarily impaired its usefulness, and any such 
highway, turnpike or plank-road may be carried by it, 
under or over its track, as may be found most expedient. 
Where an embankment or cutting shall make a change in 
the line of such highway, turnpike or plank-road desir¬ 
able, with a view to a more easy ascent or descent, it may 
construct such highway, turnpike or plank-road, on such 
new line as its directors may select, and may take addi¬ 
tional lands therefor by condemnation if necessary. Such 
lands so taken shall become part of such intersecting high¬ 
way, turnpike or plank-road, and shall be held in the 
same manner and by the same tenure as the adjacent 
parts of the highway, turnpike or plank-road are held for 
highway purposes. Every railroad corporation shall 
pay all damages sustained by any turnpike or plank-road 
corporation in consequence of its crossing or occupation 
of any turnpike or plank-road, and in case of inability to 
agree upon the amount of such damages it may acquire 
the right to such crossing or occupation by condemnation. 

§ 20. Individual, joint stock association, or other 
corporation may lay down and maintain railroad 
tracks in certain cases .—Any individual, joint stock 
association or corporation, engaged in any lawful business 
in this state, may, except in any city of the state, lay 
down and maintain such railroad tracks on or across any 
street or highway, not exceeding three miles in length, as 
shall be necessary for the transaction of its business, and 
to connect any place of business owned by them with the 
track of any railroad corporation, and render such place 
of business more accessible to the public, upon obtaining 




The Highway Law of New York. 


273 


Sign boards and flagmen at crossings. 


the written consent of the owners of all the lands bounded 
on and of the local authorities having control of that por¬ 
tion of the street or highway, upon which it is proposed 
to construct or operate such railroad. If the consent of 
such property owners can not be obtained, the general 
term of the supreme court of the department in which 
such railroad is to be constructed, may upon application, 
appoint three commissioners, who shall determine, after 
a hearing of all parties interested,’’whether such railroad 
ought to be constructed or operated, and the amount of 
damages, if any, to be paid to such property owners, 
and their determination confirmed by the court may be 
taken in lieu of the consent of the property owners. But 
no such railroad shall be so located, graded, built or ope¬ 
rated as to interfere with or obstruct the traveled part of 
any highway, or its use as a highway, or the use of any 
street or highway intersecting the same. 

§ 33. Sign boards and flagmen at crossings .— 
Every railroad corporation shall cause boards to be placed, 
well supported and constantly maintained across each 
traveled public road or street, where the same is crossed 
by its road at grade. They shall be elevated so as not to 
obstruct travel, and to be easily seen by travelers; and 
on each side shall be painted in capital letters, each at 
least nine inches in length and of suitable width, the 
-words: “Railroad crossing; look out for the cars;” but 
such boards need not be put up in cities and villages, 
unless required by the officers having charge of the streets. 
At any point where a railroad crosses a street, highway, 
turnpike, plank-road, or traveled way at grade, or where 
a steam railroad crosses a horse railroad at grade, and the 
corporation owning or operating such railroad, refuses, 
upon request of the local authorities to station a flagman 
or erect gates, to be opened and closed when an engine 
18 





274 


The Highway Law of New York. 


Sign boards and flagmen at crossings. 


or train passes, the supreme court or the county court 
may, upon the application of the local authorities and 
upon ten days’ notice to the corporation, order that a 
flagman be stationed at such point, or that gates shall be 
erected thereat, and that a person be stationed to open 
and close them when an engine or train passes, or may 
make such other order respecting the same as it deems 
proper. Whenever the crossings by a railroad at grade of 
the streets, highways, turnpikes, plank-roads, or trav¬ 
eled ways of any village or city, having a population by 
the last state or federal enumeration of less than fifty 
thousand, shall be protected by gates with persons to 
open and close the same, when an engine or train passes, 
the local authorities of the city or village shall not impose 
any limitation, less than forty miles an hour, on the rate 
of speed at which such engine or train shall be run, or 
enforce any existing limitation upon such rate of speed, 
less than forty miles an hour. 

Amended by L. 1892, ch. 676. 




The Highway Law of New York. 


275 


Indian law. 


INDIAN LAW. 


§ 12. Highways on tribal lands .—Commissioners of 
highways of towns in which an Indian reservation is 
wholly or partly situated shall have the same power and 
jurisdiction over the portion of the reservation in their 
respective towns, to improve highways already laid out 
therein, as is conferred upon such commissioners by the 
highway law, except that the written decision of the 
commissioners shall be served upon the agent, attornej? or 
some other officer of the nation, tribe or band occupying 
such reservation; from which decision, such Indians may 
within sixty days after the service thereof, appeal to the 
county judge of the county in which such lands are situ¬ 
ated, whose decision shall be final. Such commissioners 
of highways may, with the consent of the tribal or na¬ 
tional authorities of the nation, tribe or band occupying 
such reservation, lay out and establish as provided by law, 
highways on or across such reservation, and the highway 
commissioners of the town shall thereafter be charged 
with the maintenance of such road and the bridges thereon. 
This section shall not authorize the taxation of an Indian 
who is not a citizen. 

§ 73. General powers and duties of the council .— 
The council of the Seneca nation shall meet annually on 
the first Tuesday in June, and in extra session whenever 
called by the president. Ten of the councilors shall be 
necessary to constitute a quorum for the transaction of 
business. The council shall have power, 

. . . • ...... 

3. To determine on*the laying out and working of roads 





276 


The Highway Law of New York. 


General powers and duties of council. 


and highways, and to make by-laws for the regulation of 
such work. 

• • t • •••••• 

Amended by L. 1893, ch. 229. 

§ 80. General powers and duties of council .—The 
council of the Tonawanda nation may determine upon the 
laying out and working of roads and highways, and may 
make by-laws for the regulation of such work; may pass 
by-laws and ordinances, not inconsistent with law, for the 
protection and improvement of the common land of the 
nation; for the regulation of fences, and for the prevention of 
trespasses by cattle and other domestic animals; and may 
provide a penalty of not exceeding five dollars, for the 
violation or disobedience of any such by-law or ordinance, 
recoverable for the benefit of such nation by any chief or 
officer thereof, in any justice’s court of the county of 
Genesee. 

§ 94. Highway labor .—Such chiefs, in council, may 
annually, before the first day of July, assess such amount 
of highway labor as they shall deem just and reasonable, 
not exceeding fifteen days in any one year, upon each male 
Indian of full age. The number of days work and the 
name of the individual assessed shall be entered upon the 
roll made and signed by such chiefs or by the president of 
the council, under their direction. Such chiefs may also 
designate suitable persons to superintend the highway 
labor, and the plan and manner of its application. The 
persons so designated shall give notice to those assessed to 
perform such labor, and at least twenty-four hours’ notice 
of the time of performance. If any person so assessed, 
after being notified, shall neglect or refuse to perform such 
labor, he shall be liable to a penalty of seventy-five cents 
for each day’s labor assessed, to be recovered by an action 




The Highway Law of New York. 


277 


Highway labor. 


in the name of the nation, in which action the assessment- 
roll shall be conclusive evidence of the regularity of the 
assessment. For the purpose of such action, such Indian 
shall be regarded as an inhabitant of the town of Lewiston, 
Niagara county, and the proceedings shall be the same as 
between citizens. Any paper may be served upon such 
nation as a party by delivering it to any two chiefs per¬ 
sonally. 

This section applies to the Tuscarora Nation. 




278 


The Highway Law of New Yoke. 


Laws 1817, chapter 83. 


MISCELLANEOUS LAWS RELATING 


HIGHWAYS. 



LAWS 1817, CHAPTER 83. 


AN ACT relative to state roads. 

Whereas great inconvenience has arisen from the want 
of authority in the commissioners of highways, of the sev¬ 
eral towns in this state, to alter and amend such highways 
as are laid out by special acts of the legislature, commonly 
called state roads; and in order to prevent application 
being made to the legislature for every alteration in said 
roads, as are supposed to be necessary,—Therefore, 

Be it enacted by the people of the State of New York, rep¬ 
resented in Senate and Assembly , That it shall be lawful 
for the commissioners of highways of any town in this 
state, through which a state road passes, on being 
applied to by twelve freeholders of such town, and with 
the consent of the commissioners of highways of the ad¬ 
joining towns through which said road passes, to regulate 
and alter such road, in the said town, if in their opinion 
the public good and convenience shall require the same: 
Provided hoivever, That no such alteration shall alter the 
general route of the road: And also, That the provisions 
of the act, entitled “An act to regulate highways,” rela¬ 
tive to the alteration and amendment of public roads, shall 
be held to extend to such alteration, as aforesaid, of any 
state road. 






The Highway Law of New York. 


279 


Laws 1835, chapter 300. 


LAWS 1835, CHAPTER 300. 

AN ACT to enlarge the jjozuers of commissioners of high¬ 
ways. 

Section 1 . —Whenever any association or individual 
shall construct a railroad upon land purchased for that 
purpose, on a route which shall cross any road or other 
public highway, it shall be lawful for the commissioners 
of highways, having the supervision thereof, to give a 
written consent that such railroad may be constructed 
across, or on such road or other public highway; and 
thereafter such association or individual shall be author¬ 
ized to construct and use such railroad across, or on such 
roads or other highways as the commissioners aforesaid 
shall have permitted; but any public highway thus inter¬ 
sected or crossed by a railroad, shall be so restored to its 
former state as not to have impaired its usefulness. 


LAWS 1853, CHAPTER 62. 

AN ACT to regulate the construction of roads and streets 
across railroad tracks. * 

§ 1. It shall be lawful for the authorities of any city, 
village or town in this state, who are by law empowered 
to lay out streets and highways, to lay out any street or 
highway across the track of any railroad now laid or 
which may hereafter be laid, without compensation to the 
corporation owning such railroad; but no such street or 
highway shall be actually opened for use until thirty days 
after notice of such laying out has been served personally 
upon the president, vice-president, treasurer or a director 
of such corporation. 

§ 2. It shall be the duty of any railroad corporation, 




280 


The Highway Law of New York. 


Laws 1853, chapter 62. 


across whose track a street or highway shall be laid out as 
aforesaid, immediately after the service of said notice, to 
cause the said street or highway to be taken across their 
track, as shall be most convenient and useful for public 
travel, and to cause all necessary embankments, excavation 
and other work to be done on their road for that purpose; 
and all the provisions of the act, passed April second, 
eighteen hundred and fift} 7 , in relation to crossing streets 
and highways, already laid out, by railroads, and in rela¬ 
tion to cattle,* guards and other securities and facilities 
for crossing such roads, shall apply to streets and high¬ 
ways hereafter laid out. 

(The reference in this section to L. 1850, ch. 140, which is repealed, must 
now be deemed a reference to the Railroad Law.) 

§ 3. If any railroad corporation shall neglect or refuse, 
for thirty days after the service of the notice aforesaid, to 
cause the necessary work to be done and completed, and 
improvements made on such streets or highways across 
their road, they shall forfeit and pay the sum of twenty 
dollars for every subsequent day’s neglect or refusal, to be 
recovered by the officers laying out such street or high¬ 
way, to be expended on the same; but the time for doing 
said work may be extended, not to exceed thirty days, by 
the county judge of the county in which such street or 
highway, or any part thereof, may be situated, if, in his 
opinion the said work cannot be performed within the 
time limited by this act. 


* So in the original. 








The Highway Law of New York. 


281 


Laws 1862, chapter 220. 

LAWS 1862, CHAPTER 220. 

Relating to State Asylum for Idiots. 

§ 10. Exemption of officers —The resident officers of 
the asylum and all the teachers, attendants and assistants 
actually employed therein, during the time for such 
employment shall be exempt . . . from all assess¬ 
ments for labor on the highways . . . ; and the cer¬ 

tificate of the superintendent shall be conclusive evidence 
of such employment. 


LAWS 1869, CHAPTER 131. 


AN ACT for the erection and maintenance of watering 
troughs in the 'public highways. 

§ 2. Abatement of toll on plank-roads for watering 
troughs .—The directors of the several plank-road and 
turnpike road companies in this state shall annually abate 
three dollars from the toll of any inhabitant, not an inn¬ 
keeper, or all of it if in the aggregate not exceeding that 
sum, who shall construct on his own land, and keep in 
repair, a watering trough beside the plank-road or turn¬ 
pike road as the case may 7 be, well supplied with fresh 
water, the surface of which shall be two or more feet above 
the level of the ground, and easily accessible for horses 
w T ith vehicles; but the commissioners of highways of the 
towns respectively shall, and they are hereby invested with 
full power and authority to designate those necessary for 
the public convenience along said plank-road or turnpike 
road, as the case may be, and no others than those desig¬ 
nated shall be allowed both such abatement of toll and 
highway labor. 

Added by L. 1872, ch. 274. 






282 


The Highway Law of New York. 


Laws 1869, chapter 131. 


§ 3. Duty of commissioners in case of refusal of 
directors to abate toll; penalty .—In case the directors 
of any plank-road or turnpike road company in this state, 
shall refuse or neglect to abate the toll as aforesaid, in 
compliance with the provisions of the preceding section, 
any inhabitant having constructed a watering trough in 
compliance therewith, may notify the commissioner or 
commissioners of highways, as the case may be, of the 
town in which the same had been erected, of such neglect 
or refusal on the part of the directors aforesaid, whose 
duty it shall be, and who are hereby invested with full 
power and authority to proceed, without delay, to an 
examination of said watering trough; and if, upon a full 
examination of the same, the said commissioner or com¬ 
missioners, as the case may be, or a majority of them, 
shall deem it necessary for the convenience of the public 
that such watering trough ought to be maintained, he or 
they, as the case may be, shall forthwith notify the said 
directors accordingly, by serving a written notice on the 
president of the company, to that effect, in which the 
necessity of its maintenance shall be clearly expressed; 
and if the said directors shall still refuse or neglect to 
abate the toll as aforesaid, and shall demand and take toll, 
on application for such abatement, in violation of the 
provisions of the preceding section, for the space of thirty 
days after the service of such notice, they shall be liable 
to a penalty of twenty dollars, to be recovered in an action 
at law at the suit of the person having constructed said 
watering trough. 

Added by L. 1872, ch. 274. 




The Highway Law of New York. 


283 


Laws 1870, chapter 311. 


LAWS 1870, CHAPTER 311. 

AN ACT to provide for repairing and keeping in order 
highways , streets and roads betiveen cities, towns and vil¬ 
lages. 

Section 1 . Whenever a highway, street or road shall 
be on the line between a city, town or village, or between 
either of them, the officers authorized and required to 
repair and keep in order the highways, streets and roads 
in such city, town, and village, shall meet together at 
the mayor’s office in such city, if said highway, street or 
road be on the line between a city and town or a city and 
village, or at the office of the town clerk of such town, if 
the same be on the line between a town and village, on 
the first Monday of May in each year, at 12 o’clock M. 
and divide such highway, street or road, and allot one 
part thereof to such city and the other to such town or 
village, or one part thereof to such town and the other to 
such village, as the case may be, in such manner that the 
labor and expense of working and keeping in repair such 
highway, street or road may be equal as near as may be. 

§ 2. Upon the neglect or failure to attend on the part 
of the officers of any city, town or village, at the time or 
places designated in the first section of this act for the 
purposes therein mentioned, the officers of the city, town 
or village present may perform the said duty, and when 
done, the divisions thus made shall be of the same force 
and effect as if made by the joint action of such city and 
town, or such city and village, or such town and village. 

§ 3. The statement of the division made pursuant to 
the provisions of the first or second section of this act 
shall be reduced to writing and properly authenticated by 
the officers making the same, and shall be filed within 





284 


The Highway Law of New York. 


Laws 1871, chapter 171. 


ten days after such division is made in the offices of the 
city clerk of the city, of the town clerk of the town, and 
of the clerk of the village, between whom such division 
has been made. 

§ 4. This act shall take effect immediately. 


LAWS 1871, CHAPTER 171. 

AN ACT in relation to assessment of highway labor in 
certain cases. 

Section 1 . In all cases where there is an incorporated 
village or city within the limits of any town, which is by 
law a separate road district, and there shall be any real 
estate, owned by any person or corporation, situated 
partly within the limits of such village or city and partly 
without said village or city, it shall be the duty of the 
assessors of such town, after fixing the valuation of the 
whole of such real estate as now by law required, to deter¬ 
mine what proportion of such valuation is on account of 
that part of said real estate lying without the limits of 
said city or village, and designate the same upon their 
assessment list. 

§ 2. The valuation of the real estate lying without the 
limits of any city or village, so fixed and determined 
by the assessor, shall be the valuation on which the com¬ 
missioners of highways of towns shall assess highway 
labor against the owner or owners of such real estate; and 
in no case shall the commissioners of highways assess any 
highway labor on property situated within the limits of 
any incorporated city or village which is by law a separate 
road district. 

§ 3. This act shall take effect immediately. 







The Highway Law of New York. 


285 


Laws 1879, chapter 317. 


LAWS 1879, CHAPTER 317. 

AN ACT to authorize the laying of pipes in the streets, 
avenues, and public places in the various cities, towns, and 
villages of the state , for heating and other purposes. 

Section 1 . The municipal authorities of the cities, 
towns, and villages of the State of New York are hereby 
authorized and empowered to carry out the provisions of 
this act. 

§ 2. Any corporation or association formed or organized 
under the act entitled “An act to authorize the formation 
of corporations for manufacturing, mining, mechanical, 
or other chemical purposes,” passed February seventeenth, 
eighteen hundred and forty-eight, or under any of the 
amendments to said act, or under the “Act to provide 
for the organization and regulation of certain business 
corporations,” passed June twenty-first, eighteen hundred 
and seventy-five, shall have full power to manufacture, 
furnish, and sell such quantities of hot water, hot air, or 
steam as may be required in the city, town, or village 
where the same shall be located; and such corporation 
shall have power to lay pipes or conductors for conducting 
hot water, hot air, or steam through the streets, avenues, 
lanes, alleys, squares, and highways in such city, village, 
or town, with the consent of the municipal authorities 
of said city, town, or village, and under such reasonable 
regulations and conditions as they may prescribe; and 
whenever any such permission shall be granted, it shall 
only be upon the condition that reasonable compensation 
shall be paid therefor, and upon a further condition that 
a satisfactory bond shall be given to secure the city, town, 
or village against all damages in the use of said pipes. 
The amount of the compensation, and the manner of its 
payment, and the amount of the bond shall be first fixed 





286 


The Highway Law of New York. 


Laws 1881, chapter 344. 


and determined by said municipal authorities, before any 
pipes, as provided for by this act, shall be laid in any city, 
town, or village of this state, and that all such permissions 
heretofore given by any of said municipal authorities, 
where the above terms have been complied with, are 
hereby confirmed. 


LAWS 1881, CHAPTER 344. 

AN ACT to amend chapter two hundred and fifteen of 
the laws of eighteen hundred and seventy-five, entitled 
“An act to 'prevent the mutilation of shade or ornamental 
trees.’ 1 

Section 1 . Section one of chapter two hundred and fif¬ 
teen of the laws of eighteen hundred and seventy-five, 
entitled “An act to prevent the mutilation of shade or 
ornamental trees,’ 5 is hereby amended so as to read as 
follows: 

§ 1. It shall be unlawful for any person or persons 
whatsoever, in this state, to hitch any horse or other animal 
to, or leave the same standing near enough to, to injure 
any fruit or forest tree that has been transplanted or used 
as a shade or ornamental tree around any school house, 
church or public building, or along any public highway, 
or to cut down or mutilate, in any way, any such orna¬ 
mental or shade trees; but the right of property owners 
along highways to cultivate, train and use such shade trees 
shall not be impaired or abridged hereby. 

§ 2. Section two of said act is hereby amended so as to 
read as follows: 

§ 2. Any'person or persons guilty of violating the pro- 




Tiie Highway Law of New York. 


287 


Laws 1883, chapter 113. 


visions of section one of this act shall be liable to prosecu¬ 
tion by any person, before any justice of the peace in the 
town where the offense is committed, and punishable by a 
fine not exceeding ten dollars, nor less than one dollar, 
besides the costs of action for each offense or for each tree 
cut down or mutilated in violation of the provisions of 
this act; and every such penalty, when collected, shall be 
paid by the justice, one-half to the overseer of the poor of 
the town in which recovery was had, and the remainder 
to complainant, and the same process and means for the 
collection of the penalties imposed by this act may be 
issued aud had as are now allowed by law for the collec¬ 
tion of damages in actions of tort, but no provision of this 
act shall operate to interfere with any ordinance of the 
incorporation of villages and cities of this state, intended 
to secure the protection of shade trees therein. 

§ 3. This act shall take effect immediately. 


LAWS 1883, CHAPTER 113. 

AN ACT in relation to alterations of highways , streets or 
bridges in incorporated villages. 

Section 1. Provision to ascertain damage. —When¬ 
ever the grade of any street, highway or bridge in any 
incorporated village in this state shall be changed or 
altered so as to interfere in any manner with any building 
or buildings situated thereon, or adjacent thereto, or the 
use thereof, or shall injure or damage the real property 
adjoining such highway so changed or altered, the owner 
or owners of such building or real estate may apply to the 
supreme court in the judicial district in which such prop¬ 
erty is situated for the appointment of three commissioners 




233 


The Highway Law of New Yotck. 


Laws 1883, chapter 113. 


to ascertain and determine the amount of damage sus¬ 
tained thereby; due notice of such application shall be 
given to the person or persons having competent authority 
to make such change or alteration. 


§ 2. Condemnation law to apply .—All the provi¬ 
sions of the condemnation law relative to the appointment 
of commissioners, their powers, duties, fees and expenses, 
shall be applicable to the appointment of, and the powers, 
duties, fees and expenses of the commissioners appointed 
in pursuance of the provisions hereof; but it shall be the 
duty of said commissioners in assessing and ascertaining 
the damages sustained by property owners adjoining such 
street or highway to take into consideration and to ascer¬ 
tain the value of any benefits or advantages to the property 
in consequence of the alteration of the grade; and in all 
cases the value of such benefits or improvements shall be 
offset against and deducted from the damages; and no 
person or property owner shall be entitled to recover any 
damages who shall, in writing, request or assent that the 
said grade of any such street shall be changed or altered. 

Amended by L. 1884, ch. 281, and by L. 1894, ch. 172. 

§ 3. Damages a public charge .—All damages ascer¬ 
tained and determined under the provisions of this act, 
together with the costs of such proceedings, shall be a 
charge, when allowable, upon the village, town or other 
municipality chargeable with the maintenance of the 
street, highway or bridge so altered or changed; but no 
property owner or person instituting proceedings to recover 
damages under the provisions of this act shall be entitled 
to costs, unless the claim for such damages shall have first 
been presented to and rejected by, or neglected to have 
been adjusted for thirty days after presentation by the 
trustees or other proper officers of said village, town or 





The Highway Law of New York. 


289 


Laws 1890, chapter 291. 


municipality, nor in case such trustees or other proper 
officers shall have made an offer to settle or compromise 
such claim, which offer is declined by said property owner, 
unless he shall recover more than is so offered; and in 
case he fails to recover any damages, or less than offered, 
he shall be liable for the costs of such proceeding. When 
either party is entitled to costs under this section, they 
shall be the same costs, and at the same rates as prescribed 
in the condemnation law, and the court may grant an 
additional allowance of costs to the prevailing party at the 
same rates as provided by the condemnation law. 

Amended by L. 1884, ch. 281,and by L. 1894, ch. 172. 


LAWS 1890, CHAPTER 291. 

AN ACT to authorize towns to raise additional money 
for highway purposes and to prevent snow blockade of high - 
ivays by the substitution of ivire for other fences along the 

same. 

Section 1. It shall be lawful for the commissioner of 
highways of any town in this state to apply in open town 
meeting for a vote authorizing such sum, not to exceed 
three hundred dollars in any one year, to be raised, in 
addition to the sums now allowed by law, as they may 
deem necessary for the purpose specified in the third sec¬ 
tion of this act. The same notice shall be given by the 
commissioners of their intention to apply for the laising of 
such additional sum as is now required by law for the 
raising of money for roads and bridges, above the amount 
of two hundred and fifty dollars. 

§ 2. If the town meeting shall, by their votes, deter- 
19 





290 


The Highway Law of New York. 


Laws 1890, chapter 291. 


mine that a sum shall be raised for the purpose specified 
in this act, the proceedings for certifying and levying, col¬ 
lecting and paying the same shall be in all respects the 
same as now provided by law for the raising and paying 
over of money for roads and bridges, above the amount of 
two hundred and fifty dollars. 

• 

§ 3. The commissioners of highways shall expend the 
money raised under the provisions of this act in the pur¬ 
chase of fence wire, in the same manner as other supplies 
for highway purposes are by law required to be purchased, 
and no part of such money shall be expended, except for 
the purchase of fence wire as aforesaid; and the said com¬ 
missioners are hereby authorized to contract with the 
owners of the lands lying along the highways of their 
respective towns, at such points as are liable to snow 
blockade, for the removal of the fences now standing along 
the boundaries of such highways, and the replacing of such 
fences with wire fences. And they may contract to deliver 
to said land owners, fence wire to be used in the construc¬ 
tion of such fences, without charge to said land owners, 
at the place of purchase, but they shall not agree to pay 
any part of the cost of the removal or construction called 
for by said contracts, or to make any payment to said land 
owners as a compensation for the construction of fences. 


§ 4. The fences to be built under the provisions of this 
act, shall be of four strands of wire with a substantial bar 
of wood at the top; and the construction of said fences, 
and the size of said top bars and of the posts and supports 
of said fences, and their distance apart shall be such as 
said commissioners shall prescribe. Whenever such fence 
or fences shall become so out of repair as to be dangerous 
to animals passing along the highways, it shall be the 







The Highway Law of Hew York. 


291 


Laws 1890, chapter 382. 


duty of the owner or owners of said fence or fences to 
immediately repair or remove the same. 

§ 5. Whenever the commissioner of highways of any 
town shall contract for the removal of any fence, under the 
provisions of this act, they shall file in the office of the 
town clerk of said town, a description of that portion of 
the highway to which said contract shall apply, and there¬ 
after, it shall not be lawful for any person to replace the 
fence so contracted to be removed, with any fence liable 
to cause the drifting of snow. 

§ 6. This act shall take effect immediately. 


LAWS 1890, CHAPTER 382. 

AN ACT to authorize the supervisor, justices of the peace 
and town clerk of any town having a population of more 
than three thousand, to license and regulate all public hacks, 
vehicles, venders, shoivs, concerts and public amusements in 
such town. 

Section 1. The supervisor, justices of the peace and 
town clerk of any town having a population as shown by 
the last federal or state enumeration, of more than three 
thousand inhabitants residing outside of an incorporated 
city or village, are hereby authorized and empowered to 
license and regulate all public hacks, vehicles, venders, 
shows, concerts and public amusements in such town, 
outsid* of an incorporated city or village, and to fix the 
fee to be paid for the persons so licensed to said officers, 
which moneys so collected shall be paid over to the super- 


* So in the original. 





292 


The Highway Law of New York. 


Laws 1890, chapter 555. 


visor of such town within thirty days after the receipt of 
the same, and the said supervisor shall pay the same over 
to the commissioners of highways of such town, to be 
applied to the necessary repairs of the roads and high¬ 
ways of such town, after deducting the necessary expenses 
for carrying out the provisions of this act. 

The remaining sections have no application to highways. 


LAWS 1890, CHAPTER 555 (APPLICABLE TO 
RICHMOND COUNTY ONLY.) 

AN ACT to provide for the improvement and mainte- 
nance of the public roads in certasn counties as county 
roads. 

Section 1.—In every county not exceeding two hundred 
square miles in area, it shall be lawful for the board of 
supervisors thereof to acquire and assume, for the purpose 
of improving and maintaining the same, the full and ex¬ 
clusive control of any public road or roads, or part thereof, 
in such county, so far as may be necessary only for the 
said purpose of improving and maintaining the roadbed 
thereof as a road or roads for carriages or other vehicles, 
but for no other purpose. In order to acquire and assume 
such control in any county, with power to improve and 
maintain the same, the said board shall cause a map to 
be made, or adopt a map already made, on which the prin¬ 
cipal public roads or highways of the county shall be, or 
are, laid down, and shall cause the roads or parts of roads 
of which the said board intends to acquire and assume 
such control to be plainly indicated thereon and shall file 
the said map, when so marked and certified by it, in the 
office of the clerk of the county; whereupon the roads or 
parts of roads so marked or indicated on said map shall be- 







The Highway Law of New York. 


293 


Laws 1890, chapter 555. 


come and be known as “county roads/* and shall thereafter 
be improved, maintained and kept in repair by the board 
of supervisors of such county in the manner hereafter pro¬ 
vided, and it shall be lawful for such board of supervisors, 
from time to time, to assume control of and establish other 
roads or parts of roads as county roads, and improve and 
keep the same in repair, as aforesaid, or to relinquish con¬ 
trol of any road or part of any road so acquired, in either 
of which cases the said map shall be changed accordingly, 
and the assuming or relinquishing the control of any pub¬ 
lic road shall be by resolution, in writing, entered upon 
the minutes of the board, and a copy thereof, certified by 
the clerk of the board, shall be filed forthwith in the office 
of the county clerk. If any road, or part thereof, so to be 
improved or repaired, shall pass through any village, it 
shall be necessary to obtain the consent of the board of 
trustees of such village before the board of supervisors 
shall assume the control, improvement or repair of that 
portion thereof lying within such village, and such board 
of trustees are hereby authorized and empowered to grant 
or give such consent. The term “road/* as used in this 
act, shall be construed to include street, avenue or other 
public highways. 

§ 2. Upon the establishment, in the manner above pro¬ 
vided, of any county road or roads, the board of super¬ 
visors of such county shall forthwith cause the said county 
roads to be improved and put in repair, and shall there¬ 
after maintain and keep the same in repair and in good 
condition, in the manner hereinafter provided. 

§ 3. The said board of supervisors shall by resolutions 
duly entered upon their minutes from time to time, esti¬ 
mate and determine what sums of money will be required 
to improve said county roads. They are hereby authorized 






294 


The Highway Law of New York. 


Laws 1890, chapter 555. 


and directed to borrow such sums of money thus determined 
upon as needed for such improvement, on the credit of the 
county, which sums so borrowed, however, shall not exceed, 
in any year, an amount, which, with then outstanding 
bonded indebtedness of said county, shall be in excess of 
ten per centum of the assessed valuation of such county 
as shown in the assessment-rolls of the preceding year, 
and the board of supervisors shall prescribe by resolution, 
the form of obligation to be issued on such loan or loans 
and the times and the place of payment, the time not to 
exceed twenty-five }mars from the date of the obligations, 
so to be issued and the rate of interest not to exceed the 
legal rate. The chairman and clerk of the board of super¬ 
visors shall indorse on each of such bonds or obligations 
that it is issued by and in accordance with the directions 
of the board of supervisors and shall sign such certificate 
in their official capacity. The said board of supervisors 
shall raise, in their annual tax levy, a sum deemed suffi¬ 
cient to keep and maintain the said county roads in good 
order and repair, or in default thereof, it shall, in like 
manner, raise, by the issue and sale of bonds as aforesaid, 
from time to time such moneys as they shall by resolution 
determine, and as shall be required for the necessary 
repairs of such road and to keep them constantly in good 
order and condition, not however, exceeding in amount the 
limit above provided. The board of supervisors shall keep 
a record showing the dates and amounts of such bonds, 
the times and place when and where the same are made 
payable and the rate of interest thereon; and such board 
shall have power and it shall be its duty from time to time, 
as the said obligations are about to become due and pay¬ 
able, to impose upon the taxable property of the county 
sufficient tax to enable payment to be made, upon the due 
date thereof, of such obligations, according to the terms and 
conditions thereof. Said board shall promptly dispose of 





The Highway Law of New York. 


295 


Laws 1890, chapter 555. 


the bonds issued as aforesaid in public competition, upon 
due notice to be published in two newspapers published in 
such county, and in two daily newspapers published in the 
city of New York, for at least three weeks prior to the sale 
thereof, for not less than the par value thereof, and shall 
pay the proceeds thereof to the county treasurer of such 
county, and the said treasurer shall immediately deposit 
the same in some trust company in the state of New York, 
designated by the supreme court as a legal depository, 
which deposit shall be entered and designated “the county 
road fund” of such county, and the same shall not be 
drawn out or used for any other purpose than the improve¬ 
ment and repair of such county roads so designated by the 
said board of supervisors, and only on the presentation of 
an account duly verified, audited by the board of super¬ 
visors and accompanied by the certificate of the supervis¬ 
ing engineer that the work, materials or services have been 
done, delivered and rendered in accordance with the con¬ 
tract therefor. 

§ 4. The said board of supervisors shall, immediately 
upon receipt of said county road funds, proceed to improve 
and repair the said county roads designated as aforesaid 
in the manner and with the material required by the pro¬ 
visions and regulations of this act, and shall, thereafter, in 
like manner, keep the said roads constantly in good repair 
and condition. All such improvements and repairs, ex¬ 
cept in so far as relates to the services of an engineer, 
shall be made under and in pursuance of written contracts 
with the lowest bidder, upon bids called for by notice and 
advertisement similar to that to be given in the case of 
the sale of the county bonds hereinafter referred to and 
upon terms and specifications, which, with the provisions 
of the contracts and the security offered by the contract- 




296 


The Highway Law of New York. 


Laws 1890, chapter 555. 


ors, shall be approved by the board of supervisors before 
such contracts shall be finally awarded or executed. 

§ 5. All the improvements and repairs made under and 
in pursuance of this act shall be done under the supervision 
of a competent civil engineer, holding a diploma as such, 
to be appointed by the board of supervisors and to be re¬ 
moved by vote of four-fifths of all the members of the 
board of supervisors. Such engineer shall be consulted in 
the preparation of the specifications and contracts for such 
work, shall require such improvements and repairs to be 
made in conformity with the provisions of this act and of 
the contracts therefor, shall certify from time to time, to 
the board of supervisors as to the character and progress 
of the work being actually done, and do such other pro¬ 
fessional work as shall be imposed upon him by such board 
of supervisors, or by the contracts for such improvements 
or repairs, and shall be paid for his services such reason¬ 
able compensation as shall have been previously agreed 
upon between him and them. The board of supervisors 
shall cause all county roads to be divided into sections of 
not more than one mile each to be designated by suitable 
monuments which shall be numbered, and it shall be the 
duty of the supervising engineer to make regular quarterly 
reports to the board of supervisors in writing (and oftener 
if required by such board), which shall state the then con¬ 
dition of each section of the road, the amount expended 
thereon for the last quarter, and the repairs necessary for 
the ensuing quarter, and the estimated cost thereof, and 
he shall file a duplicate of such quarterly report in the 
county clerk’s office. 

§ 6. The following regulations shall govern all improve¬ 
ments and repairs of such county roads, when the same are 
made under or in pursuance of the provisions of this act: 




The Highway Law of New York. 


297 


Laws 1890, chapter 555. 


1. All such improvements and repairs shall embrace or 
cover the road-bed or wagon-way to the width of at least 
one rod and to the depth of at least eight inches, unless the 
board of supervisors, by a four-fifth vote of the entire 
board, shall decide to reduce its width to fourteen feet or 
its depth to six inches in specific cases, though material 
similar to that about to be employed, if already upon such 
road-bed, may be utilized as a part of the material to be 
employed in forming such improved or repaired road-bed. 

2. No material other than stone, wood, shells or asphalt 
compound shall be used in making such improvement or 
repairs, for at least one rod or fourteen feet in width as 
the case may be and the above required depth of such im¬ 
proved or repaired surface. 

3. In case any road to be improved or repaired shall 
already have a sufficient compact and substantial founda¬ 
tion of stone already laid, such foundation may, in the 
discretion of such engineer and with the approval of said 
board of supervisors, be allowed to remain and be utitized* 
as of its actual depth, but no new or fresh material shall 
be placed thereon until all material previously and in any 
way superimposed upon such foundation, but of a different 
character from that about to be newly employed in such 
improvement or repairs, shall have been thoroughly 
removed. 

4. Whenever any road-bed or wagon-way shall be thus 
improved or repaired with broken stone, there shall be 
placed in such said road-bed or wagon-way, if a sufficient 
substantial and compact foundation of stone does not 
already exist, a foundation course or layer of trap rock, 
granite or other equally hard stone, not less than four 
inches thick, of stone not less than two and one-half inches 
in diameter, or of the size commonly known as two and 


* So in the original. 





298 


The Highway Law of New York. 


Laws 1890, chapter 555. 


one-half inch stone, and in all cases of improvement with 
stone other than block pavement, the uppermost layer or 
covering shall not be less than two inches thick, and 
shall consist of granite or trap rock dust known as screen¬ 
ings, and, in case of repair, not less than one inch in 
thickness, and the same shall be applied under the pres¬ 
sure of a roller of not less than two tons weight. 

5. All road-beds or wagon-ways thus repaired shall be 
shaped or crowned with a sufficient and continuous rise of 
at least one-half inch to the foot from the sides to the cen¬ 
ter thereof, and shall be so constantly kept and main¬ 
tained. 

§ 7. No horse railway or electric or other railway shall 
be laid, constructed or operated on said county roads, 
unless, in addition to the requirements of existing laws, 
the same shall be authorized by a two-third vote of the 
board of supervisors and unless the same shall be con¬ 
structed with a flat or grooved rail, and in case of horse 
railways, paved between the tracks in the manner pre¬ 
scribed by the board of supervisors in the resolution au¬ 
thorizing the same and the same constantly maintained in 
good order and condition by said railroad company, and 
the railroad or corporation constructing the same shall 
agree thereto, and it shall be the duty of the said board 
of supervisors to require from said railroad or corporation, 
or other person, a bond with sufficient sureties as a guar¬ 
antee, and conditioned for the performance of their agree¬ 
ment, and the board of supervisors may, from time ? to 
time, require such bond to be renewed in case the sure¬ 
ties, or any of them, in its judgment, shall become insuf¬ 
ficient. 

§ 8. Whenever it shall be necessary to lay water or 
gas mains, or contruct sewers or other public improve- 






The Highway Law of New York. 


299 


Laws 1890, chapter 555. 


ments, or to make connections therewith through or upon 
said county roads, or any part thereof, which shall require 
the digging up or interference with the same or the road¬ 
beds thereof, in addition to the consent and authority 
required under existing laws for the same, it shall be 
necessary to obtain the consent of said supervising engi¬ 
neer thereto. The said road and road-bed shall, in each 
case, be promptly restored to its former condition, and 
the same shall be done subject to the approval of the 
supervising engineer, at the expense of the person, cor¬ 
poration or municipal authority, at whose request such 
work shall be done, and the amount thereof may be 
recovered in default of payment, by the board of super¬ 
visors; and, before granting his consent, the said super¬ 
vising engineer shall require a sufficient deposit to be 
made by the person or corporation applying for such con¬ 
sent, conditioned that the said road or road-bed shall be 
so restored. 

§ 9. Wherever an expenditure exceeding the rate of ten 
thousand dollars per mile shall be deemed necessary on 
such county roads, or any part thereof, all such expendi¬ 
ture in excess of ten thousand dollars per mile shall be 
borne by the town or towns, village or villages, or sepa • 
rate road districts within whose jurisdiction such roads 
or parts of roads so improved or repaired shall be, and 
in case of such excess, the board of supervisors shall cause 
such excess to be levied and collected in the next ensuing 
tax levy authorized by such supervisors upon such towns, 
or upon the portions thereof embraced in such villages or 
separate road districts liable therefor. 

§ 10. Said board of supervisors shall have the control 
and jurisdiction over said county boards only for the pur¬ 
pose of improving and keeping the same in repair, except 






300 


The Highway Law of New York. 


Laws 1880, chapter 555. 


as hereinbefore mentioned, and for all other purposes the 
said roads shall remain and be subject to the authority, 
control and jurisdiction of the town, village, separate road 
district, or local authorities to which they shall respec¬ 
tively belong; provided, however, that all roads or parts 
of roads designated as county roads shall remain under 
the control of the local authorities liable for the repair 
thereof until such improvement shall have been actually 
begun thereon under this act, and if the said board of 
supervisors shall at any time relinquish the control of any 
county road or part thereof the local authorities within 
whose jurisdiction the same shall be, shall forthwith 
resume the control and charge thereof in like manner as 
if the same had not been designated as a county road. 

§ 11. All action taken in violation or disregard of the 
provisions hereof, or any failure to observe the provisions 
hereof, shall be deemed unlawful, and any officer or per¬ 
son who shall participate in such action shall be guilty of 
a misdemeanor, and shall, upon conviction, in addition 
to the punishment provided by law for a misdemeanor, 
be adjudged to pay to the treasurer of such county a fine 
of five hundred dollars. 

§ 12. The provisions of this act shall not become com¬ 
pulsory in any county containing a city of over one hun¬ 
dred thousand inhabitants, unless the board of super¬ 
visors thereof shall, by a vote of four-fifths of all the 
members of such board, determine that it will be beneficial 
to such county that this act shall be compulsory therein. 

§ 13. Nothing in any general act, or general or special 
act for the organization of any village or separate road 
district in any county, or relating thereto, shall be con- 




The Highway Law of New York. 


301 


Laws 1891, chapter 309. 


strued to prevent the carrying out of the provisions of 
this act. 

§ 14. This act shall take effect immediately. 


LAWS 1891, CHAPTER 309. 

AN ACT to authorize overseers of highways to acquire 
gravel for highway purposes. 

Section 1. The overseers of highways of any road dis¬ 
trict of the state, with the consent of the commissioners of 
highways of the town, and the approval of the town board, 
shall have power to purchase of the owner of any gravel 
bed or pit within the town, gravel for the purpose of grad¬ 
ing, repairing or otherwise improving the highways of the 
town at a price per cubic yard approved by said commis¬ 
sioners and town board. If such overseer can not agree 
with any such owner for the purpose of such gravel, the 
overseer, with the consent of such commissioners and the 
approval of such town board, shall have power to acquire 
by condemnation the right to take and use such gravel, 
provided, no gravel shall be so condemned within one 
thousand feet of any house or barn, or taken from any 
lawn, orchard or vineyard, and to remove the same from 
such bed or pit for the purpose of grading, repairing or 
otherwise improving such highways, together with the 
right of way to and from such bed or pit to be used for the 
purpose of such removal. The right to use such gravel or 
to take the same from any such bed or pit may be acquired 
under this section for two or more or all of the road dis¬ 
tricts of the town, in common; and if acquired for two or 
more or all of the districts, the commissioners of highways, 
with the approval of the town board, must make the pur- 




302 


The Highway Law of New York. 


Laws 1893, chapter 239. 


chase or acquire such right by condemnation. The 
amount agreed to be paid upon any such purchase, and the 
amount adjudged to be paid upon any such condemnation 
shall be paid by the districts in which such gravel shall be 
used, but the costs and expenses of the proceedings for the 
condemnation incurred by the overseer, shall be a charge 
upon the town, and shall be audited by the town board, 
and paid the same as other town charges. 

§ 2. If the town shall abandon for the period of three 
years any right so acquired to use any gravel bed or pit or 
to take gravel therefrom, or if the overseer of highways of 
any such district wherein any such right shall have been 
so acquired, or the commissioners of highways of the town 
shall cease to use the same for the purposes for which it 
was acquired, the right of the town and of such overseer 
and commissioners thereto shall cease, and the ownership 
thereof shall revert to and become vested in the owner of 
such bed or pit at the time such right was acquired, or his 
heirs or assigns. 

§ 3. This act shall take effect immediately. 


LAWS 1893, CHAPTER 239. 

AN ACT in relation to the intersections and crossings of 
the tracks and roadbeds of certain railroads laid in, across 
or upon the highways, streets, avenues or roads of the cities, 
towns and villages of the state. 

Section 1 . Whenever the railroad or route of any street 
surface railroad corporation shall intersect and cross, or 
shall cross the tracks and roadbed of any railroad, operated 
by locomotive, steam or other power, which are laid in, 




The Highway Law of New York. 


303 


Laws 1893, chapter 239. 


across or upon the surface of any street, avenue, road or 
highway in any city, town or village of the state, having 
less than five hundred thousand inhabitants, and such 
street railroad corporation having been unable to agree 
with the corporation owning the tracks and roadbed so 
intersected or to be intersected and crossed, as to the line 
or lines, grade or grades, points or manner of such inter¬ 
section and crossing, or upon the compensation to be made 
therefor, shall have applied to the court by petition to 
appoint commissioners to determine the same, the court 
shall upon application made by such street surface rail¬ 
road corporation, at, or after, the time of the appoint¬ 
ment of such commissioners, or if an answer to the petition 
of such street surface railroad corporation has been inter¬ 
posed, at any time thereafter, direct that such street 
surface railroad corporation, be permitted to lay its tracks 
across and to intersect, upon the surface of the street, 
avenue, road or highway, the tracks and roadbed of such 
railroad operated by locomotive, steam, or other power, 
provided, such street surface railroad corporation shall at 
the time of obtaining such order make and file with the 
clerk of said court, its bond or undertaking in writing, in 
an amount and with surety or sureties to be approved by 
the court, conditioned for the full and faithful performance 
by such street surface railroad corporation of any and all 
conditions and requirements which may be imposed by 
said commissioners and be affirmed by the court, in deter¬ 
mining the line or lines, grade or grades, points or manner 
of such intersection and crossing and as to the amount of 
compensation to be paid therefor, and also conditioned to 
conform such crossing and intersection made by virtue of 
such order of the court to the requirements made by said 
commissioners as affirmed by the court. 

§ 2. No street surface railroad shall be allowed to lay its 




304 


The Highway Law of New York. 


Laws 1893, chapter 419. 


tracks at grade across the tracks or road bed of any rail¬ 
road operated by locomotive steam power at any point 
where there are three or more tracks of the steam road 
proposed to be crossed, which tracks have been constructed 
and in operation at least two years, unless the written con¬ 
sent of the state railroad commissioners be first obtained 
for such crossing at grade. But this section shall not 
affect the operation of section one of this act in any suit 
or proceeding now pending nor any renewals of said pend¬ 
ing suit or proceeding brought for any cause. 


LAWS 1893, CHAPTER 419. 

AN ACT to repeal chapter four hundred and ninety- 
three of the laws of eighteen hundred and ninety-two, 
entitled “ An act to 'provide for the construction of high¬ 
ways and bridges upon highways , running through two or 
more towns in the same county , ” and continuing certain 
proceedings heretofore commenced under said act and author¬ 
izing the issue of bonds to pay certain portion of the costs of 
said proceedings. 

Section 1. Chapter four hundred and ninety-three of 
the laws of eighteen hundred and ninety-two, entitled 
“An act to provide for the construction of highways and 
bridges upon highways running through two or more 
towns in the same county,” is hereby repealed, but noth¬ 
ing herein shall affect any proceedings heretofore com¬ 
menced under said act where, prior to the first day of 
March, eighteen hundred and ninety-three, and the state¬ 
ment required by section four of said act of the cost of the 
construction of the bridges was presented to the board of 
supervisors of any county wherein said proceedings were 







The Highway Law of New York. 


305 


Laws 1893, chapter 582. 


instituted, and such proceedings shall continue until the 
completion thereof as in this act provided. 

§ 2. The cost of the construction of any bridges pro" 
vided in said act may be paid by levy upon the taxable 
property of said county in the taxes levied for any one 
year, or by the issuing of bonds for the cost and expense 
thereof as the board of supervisors of any county may 
determine. Such bonds shall be of such denomination, 
bear such interest and be payable at such time or times 
as the board of supervisors may determine. 

§ 3. This act shall take effect immediately. 


LAWS 1893, CHAPTER 582. 

AN ACT to 'provide for improvements in streets and high¬ 
ways in towns within counties containing upwards of six 
hundred thousand inhabitants. 

Section 1. In each of the towns of this state within 
counties containing upwards of six hundred thousand 
inhabitants, the supervisor of such town is hereby author¬ 
ized to appoint one citizen and freeholder residing in each 
school district of the town, who; together with the said 
supervisor, ex-officio, shall constitute a board to be known 
as the street improvement commissioners of such town, 
with authority to take charge of the system of improve¬ 
ments hereinafter provided for. 

§ 2. If a portion of the territory of any such town shall 
have been detached, to form a school district in connection 
with any territory of an adjoining town, such portion of 
20 




306 


The Highway Law of New York. 


Laws 1893, chapter 582. 


territory so detached shall, for all the purposes of this act, 
be considered as forming a part of the school district 
within such first mentioned town immediately adjoining 
the same, and from which it shall have been detached as 
aforesaid. 

§ 3. The moneys to be expended under this act shall be 
divided and apportioned so that the amounts thereof 
expended in each of the several school districts, as now 
constituted, shall be as nearly equal as practicable. 

§ 4. Each of the commissioners appointed by the super¬ 
visor under the provision of the first section shall take 
the constitutional oath of office and file the same in the 
office of the town clerk, together with an undertaking to 
the town in the sum of five thousand dollars, with security 
to be approved by the board of town auditors, for the 
faithful performance of his duties. 

§ 5. All vacancies in said office resulting from any cause 
or from any of said commissioners refusing to qualify 
shall be filed by the supervisor as in the first instance. 

§ 6. For the purpose of effecting the improvements 
aforesaid the said commissioners shall have power: 

First. When any streets and avenues shall have been 
duly opened and graded according to law, to determine 
those of them to be improved, the order in which said im¬ 
provements shall be made, the manner in which the work 
shall be done and the materials to be used. 

Second. To enter upon any lands in such towns for the 
purpose of surveys or for examination, or for such other 
purpose as is required under this act. 

Third. To grade, pave, gutter and curb any such street 
or avenue opened and graded as aforesaid, or any part 





The Highway Law of New York. 


307 


Laws 1893, chapter 582. 


thereof, and to make such other improvements in and 
about the same, and with such materials as they may 
deem proper. 

Fourth. To make all necessary drains and as far as 
practicable to connect the same with existing drains, 
water-courses and sewers. 

Fifth. To make temporary tramways on or over any 
street or unoccupied lands in said town, for the carriage 
of earth or materials, and use thereon such vehicles or 
motive power as they may deem best adapted to the work, 
and when private lands are so used, to grant such compen¬ 
sation for such use as to said commissioners may seem 
just. 

Sixth. To make contracts for any part of the work 
under their charge at such prices and under such terms 
and conditions as they may deem proper. All contracts 
for work exceeding five hundred dollars in amount shall 
be awarded to the lowest responsible bidder, after due 
advertisement in a Brooklyn daily newspaper for ten con¬ 
secutive days for proposals for such work, but said com¬ 
missioners may reject any or all bids if they shall deem it 
for the public interest so to do. Contractors shall be 
required to enter into bonds to the town with security 
satisfactory to said commissioners for the faithful perform¬ 
ance of their contracts. 

Seventh. To make and enforce such rules, regulations 
and restrictions as they may deem proper for the guidance 
or direction of the contractors engaged in the work herein 
provided for. 

Eighth. To do all such other things not herein specified 
as may be incident to the exercise of the powers and duties 
of said commissioners contemplated in this act. 

§ 7. The commissioners aforesaid are authorized, imme¬ 
diately after their appointment and qualification, to make 




808 


The Highway Law of New York. 


Laws 1893, chapter 582. 


all necessary surveys, and establish plans for the improve¬ 
ment of the streets and avenues as aforesaid, subject to 
the system of grades, if any, which shall have been estab¬ 
lished by law, and to prepare and furnish suitable maps, 
profiles and specifications, and the details thereof of all the 
work to be done as may be necessary. 

§ 8. For the purpose of paying the expenses incurred in 
making such improvements the supervisor of such town 
shall in the year eighteen hundred and ninety-four, and 
in the two next ensuing years, prepare and issue bonds of 
the town to be known as street improvement bonds and 
bearing interest at a rate not to exceed five per centum per 
annum, but not more than five hundred thousand dollars 
of said bonds shall be issued; said bonds shall be issued 
in separate series of one hundred thousand dollars respect¬ 
ively; each of said series of one hundred thousand dollars, 
shall be made due and payable in fifty successive annual 
installments the first of which shall become due not less 
than ten nor more than eleven years from the date of 
issue, and the supervisor before issuing said bonds or 
either of them, shall advertise in a Brooklyn daily news¬ 
paper five consecutive days for proposals for the same. 
None of said bonds shall be sold for less than the par value 
thereof. The moneys arising from the sale of said bonds 
shall be deposited as realized with the county treasurer, 
who shall keep a separate account of all moneys received 
for the purpose of said improvements, to be paid there¬ 
from on the requisition of the aforesaid commissioners 
from time to time as may be required for the purpose of 
said improvements. 

§ 9. To meet the interest on said bonds, the amounts 
thereof becoming due in each year shall be levied in and 
with and as a part of the annual taxes on all the real and 






The Highway Law of New York. 


309 


Laws 1893. chapter 582. 


personal estate taxable for ordinary town expenses of such 
town, and shall, in the warrant to the collector, be di¬ 
rected to be paid to the county treasurer for such purpose. 

§ 10. To meet the principal of said bonds the assessors, 
on or before the fifteenth day of July in each year preced¬ 
ing that in which^they shall become due, shall divide and 
apportion the amount of such principal among the several 
districts of assessment established and determined by the 
commissioners under the twelfth section, and assess the 
same in proportion to the cost of the improvements as 
therein certified. The said assessments shall be placed in 
an additional column in the assessment-roll, to be headed 
“ improvement tax,” and the assessors shall apportion the 
amount necessary to be raised in each district among the 
several lots or pieces of land contained therein which in 
their judgment shall have been benefited, in proportion to 
the benefit accruing to them by reason thereof. Such 
amounts so apportioned by the assessors shall be levied on 
said several lots, pieces or parcels of land respectively, by 
the board of supervisors, as part of the general tax, and 
shall be a lien upon and collectible against the same in the 
like manner and with like effect as the general tax of said 
town, and shall, in the warrant to the collector, be directed 
to be paid to the county treasurer for the purpose herein 
specified. Each of the several annual installments assessed 
as aforesaid each year, shall be a lien upon the lots or 
parcels of land affected thereby only from the time the 
same shall be respectively levied. 

§ 11. In case any commissioners shall be appointed by 
law for the grading of any of the streets and avenues in 
such town they shall be authorized to proceed with such 
grading only according to such plan and to such extent as 





310 


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Laws 1893, chapter 582. 


shall first be approved by the said street improvement 
commissioners in writing. 

§ 12. The powers and duties of said commissioners 
appointed under the first section shall not continue for 
more than three years and six months after the passage of 
this act; and upon the final completion of said improve¬ 
ments as determined by them shall adjust all matters con¬ 
nected herewith, and shall cause all payments thereof to 
be made by requisition upon the county treasurer as afore¬ 
said, and shall thereupon render to the board of town 
auditors an account under oath of all moneys received and 
expended by them under this act, with all vouchers and 
receipts taken by them, and shall file in the office of the 
town clerk a statement of the cost of the improvement of 
the said streets severally and respectively, including all 
their expenses under this act to be apportioned by them 
among said several streets as a part of such cost, and shall 
establish and determine districts for the assessment of the 
expenses of said several improvements, and file a certifi¬ 
cate thereof, together with all the records, maps and other 
papers connected with or used in reference to said improve¬ 
ments. 

§ 13. Nothing in this act contained shall be construed 
as affecting the provisions of any act now in force for the 
laying out, construction and maintenance of any driveway 
or parkway in this state, nor as interfering with the pow¬ 
ers and duties of any board of health, board of sewer or 
flagging commissioners, nor, except so far as hereinbefore 
otherwise provided, with the duties of the commissioners 
who may from time to time be appointed by law for the 
grading of streets or avenues in any such town, nor shall 
any of the powers conferred by this act upon said street 
improvement commissioners be exercised except by the 





The Highway Law of New Yoek. 


311 


Laws 1893, chapter 607. 


votes of a majority of them, and with the concurrence of 
the supervisor of the town. 

§ 14. This act shall not apply to the towns of Flatbush, 
Flatlands and Gravesend in Kings county. 

§ 15. All acts or parts of acts inconsistent with the pro¬ 
visions of this act are hereby repealed. 

8 16. This act shall take effect immediately. 


LAWS 1893, CHAPTEK 607. 

AN ACT to provide for the widening of highways. 

Section 1. When any part of a highway in any town 
of this state, not in an incorporated village or city, run¬ 
ning between two or more villages or cities, has, because 
of the wearing away by a river or stream or any other na¬ 
tural cause, become narrower than the width required by 
statute, and is dangerous to the users of such highway, 
twelve or more resident taxpayers of such town may pre¬ 
sent a petition to the county court of the county within 
which such town is situated. The petition shall describe 
the part of the highway proposed to be widened and state 
that such highway has become lessened in width by the 
action of a river or stream or other cause, that it is dan¬ 
gerous to the traveling public, that the widening and 
improvement of such highway is necessary foi the public 
convenience and welfare, that the highway is an impor¬ 
tant leading road between two or more cities or villages, 
that the cost of such widening and improvement would 
exceed the sum of two thousand five hundred dollars and 




312 


The Highway Law of New York. 


Laws 1893, chapter 607. 


would be too burdensome on the town or towns otherwise 
liable therefor. Such petition shall be verified by at least 
three of the petitioners. On receipt of the petition the 
county court shall forthwith appoint three commisssioners 
who shall not be named by any person interested in the 
proceedings and who shall be taxpayers of such county? 
but who shall not reside in the town or towus in which 
the highway, proposed to be widened and improved, is 
situated. 

§ 2. The commissioners shall take the constitutional 
oath of office and appoint a time and place for a meeting 
to hear all persons interested in the proposed widening of 
the highway. They shall personally examine the part of 
the highway proposed to be widened, hear any reasons for 
or against such widening and ascertain the probable cost 
of the work. They shall have power to issue subpoenas, 
administer oaths and examine witnesses; they shall keep 
the minutes of their proceedings and reduce to writing all 
oral evidence given before them. They shall make dupli¬ 
cate certificates of their decision, filing one in the town 
clerk's office of the town in which the said highway is 
located, and the other, with such minutes and evidence, in 
the county clerk's office of the county where the highway 
is located. Such commissioners shall have the same 
power as to the assessment of damages caused by the 
widening of such highway as commissioners appointed 
under article four of the highway law for the discontin¬ 
uance, altering or laying out of a highway, and as to such 
assessment the same proceedings may be had for the con¬ 
firmation, vacating or modifying of such decision, as pro¬ 
vided in and by said article four of said highway law. 
The commissioners shall receive a compensation of five 
dollars for each day necessarily spent in the performance 
of their duties under this act, and the amount so paid to 




The Highway Law of New York. 


313 


Laws 1893, chapter 607. 


the said commissioners shall be a charge upon the town or 
towns in which the highway, proposed to be widened as 
aforesaid is located. 

§ 3. If a majority of the commissioners shall determine 
that the proposed widening of the highway is necessary 
and that the cost thereof would be too burdensome for the 
town, exceeding in probable cost two thousand five hun¬ 
dred dollars, they shall notify the board of supervisors of 
the county of such decision. The board of supervisors 
shall thereupon cause one-half of the amount of the esti¬ 
mated cost to be raised by the county and paid to the com¬ 
missioners of highways of the town or towns in which that 
part of the highway proposed to be widened as aforesaid is 
located, and said commissioners of highways shall apply 
the sum so received by them towards the payment of the 
cost of such widening. The balance of the expense shall 
be raised in the manner provided by law, by the town or 
towns in which that part of the highway proposed to be 
widened as aforesaid is located. 

§ 4. The said commissioners of highways shall con¬ 
struct such widening of the highway according to plans 
and specifications adopted by them and approved by the 
town board of their town. The bills and expenses incurred 
in such work shall be audited by the town board and paid 
by the commissioners of highways out of moneys raised 
for such purpose as provided in the preceding section. 

§ 5. In case an action might lie in any court of this 
state against the commissioners of highways of any town 
to compel such commissioners to widen a part of a high¬ 
way, the width of which has become less than that 
required by statute, or in case an action has been brought 
against such commissioners to compel them to widen a 
part of a highway, the width of which has become less 






314 


The Highway Law of New York. 


Laws 1893, chapter 655. 


than that required by statute, the presentation of a veri¬ 
fied petition to the county court as provided for in section 
one of this act shall prevent the commencing of any such 
action as aforesaid and cause such an action already com¬ 
menced to cease, and shall be a bar to a recovery on the 
part of the plaintiff of a judgment against such commis¬ 
sioners of highways in any such action instituted or prose¬ 
cuted to judgment after the passage of this act. 

§ 6. This act shall take effect immediately. 


LAWS 1893, CHAPTER 655. 

AN ACT in relation to the publication and distribution of 
the Highway Law. 

Section 1 . The governor shall designate some proper 
person to prepare and publish on or before July one, 
eighteen hundred and ninety-three, a compilation of the 
highway laws of this state, defining the powers and duties 
of highway officers and resident taxpayers. Such manual 
shall also contain diagrams and practical suggestions and 
directions for grading and building roads, maintaining 
and improving the same, and removing obstructions there¬ 
from; and also practical suggestions in regard to tree cul¬ 
ture, and the laying out of lawns along highways. The 
state engineer and surveyor shall cause to be prepared and 
furnished such maps, diagrams and other drawings as the 
governor shall require for such compilation. Such com¬ 
pilation shall not be published until approved by the 
governor. 

§ 2. The person so designated to prepare and publish 
such compilation shall forward to each town clerk as 




The Highway Law of New York. 


315 


Laws 1894, chapter 266. 


many copies thereof as are required for distribution by this 
section. Each town clerk, immediately upon the receipt 
of such manuals, shall retain one for his office and distri¬ 
bute free of charge one copy to each commissioner of high¬ 
ways and overseer of highways in his town, and the cost 
thereof, which shall not exceed fifty cents per copy, shall 
be a town charge, and shall be audited and allowed as 
other town charges at the next meeting of the town board. 
Such manuals shall remain the property of the town, and 
upon the expiration of the term of office of each commis¬ 
sioner and overseer of highways shall be turned over by 
him to the town clerk, who shall deliver the same to the 
successors in office of such commissioners and overseers. 
The cost of such manuals to all other persons shall not 
exceed seventy-five cents a copy. 

§ 3. Each supervisor shall, on or before March fifteen, 
eigheen hundred and ninety-four, pay to the person desig¬ 
nated by the governor to compile such manual the amount 
due for the books forwarded to him. From the moneys so 
received, the compiler shall pay the cost of preparing and 
publishing such compilation. 

§ 4. This act shall take effect immediately. 


LAWS 1894, CHAPTER 266. 

AN ACT to 'provide for the employment of state prison 
convicts upon the public highway , and repealing chapter 
three hundred and twelve of the laics of eighteen hundred 
and ninety-three. 

Section 1. The superintendent of state prisons may 
employ or cause to be employed, not to exceed three hun- 




316 


The Highway Law of New York. 


Laws 1894, chapter 266. 


dred of the convicts confined in each state prison in the 
improvement of the public highways, within a radius of 
thirty miles from such prison and outside of an incorpor¬ 
ated city or village. 

§ 2. The agent and warden of each prison may make 
such rules as he may deem necessary for the proper care 
of such prisoners while so employed, subject to the appro¬ 
val of the superintendent of state prisons. 

§ 3. The agent and warden of each prison may desig¬ 
nate, subject to the approval of the superintendent of 
state prisons, the highways and portions thereof upon 
which such labor shall be employed; and such portions so 
designated and approved shall be under his control during 
the time such improvements are in progress, and the state 
engineer and surveyor shall fix the grade and width of the 
roadway of such highways and direct the manner in which 
the work shall be done. 

§ 4. The superintendent of state prisons is hereby 
authorized to purchase any machinery, tools and materials 
necessary in such employment. 

§ 5. Any person interfering with or in any way inter¬ 
rupting the work of any convict employed pursuant to 
this act, upon the public highways, or any person giving 
or attempting to give any intoxicating liquors, beer, ale 
or other spirituous beverage to any state prison convict so 
employed, shall be guilty of a misdemeanor. Any officer 
or keeper of any state prison having in charge the convicts 
employed upon such highways, may arrest without a war¬ 
rant any person violating any provision of this section. 
(Added by chapter 664-, Laws 1894-) 

§ 6. Chapter three hundred and twelve of the laws of 






The Highway Law of New York. 


317 


Laws 1895, chapter 499. 


eighteen hundred and ninety-three is hereby repealed. 

(Chapter 664-, Laics 1894.) 

§ 7. This act shall take effect immediately. ( Chapter 

664, Laics 1894-) 


LAWS 1895, CHAPTER 499. 

AN ACT to authorize certain town boards and commis¬ 
sioners of highways to expend a sum of money in addition 
to that authorized by the highway law , and to incur an 
indebtedness for the grading , macadamizing and improving 
of highways in said town. 

Section 1. The commissioners of highways, and the 
town board of any town of one thousand or less inhabi¬ 
tants adjoining a city having not less than thirty-five 
thousand inhabitants, which shall have been authorized 
by a majority vote of electors in said town by ballot at the 
last annual election in said town to expend a sum not 
exceeding twenty thousand dollars, in addition to the 
sum authorized to be expended by section seven, article 
one, chapter nineteen of the general laws, known as the 
highway law, for the purpose of purchasing stone, and 
quarrying, breaking, crushing and spreading the same 
upon the highways in said town, and defraying the ex¬ 
penses incidental thereto, are hereby authorized, jointly, 
to proceed with the said work so authorized by said vote. 

§ 2. And the town board of any such town is hereby 
authorized to pledge the faith and credit of said town to 
the extent and amount of such bond or bonds, and the 
sum to bear interest at a rate not to exceed five per cent 




318 


The Highway Law of New York. 


Laws 1895, chapter 499. 


per annum, to be for such amounts and upon such terms 
and conditions as may be determined by the said board. 
Said bonds, when issued, shall be binding on the town, 
and shall contain a recital that they are issued under the 
provisions of this act, and said recital shall be conclusive 
evidence in any court of the validity thereof, and of the 
regularity of their issue. But the said bonds shall be 
payable within twenty years from the date of their issu¬ 
ance. Each bond shall be signed by the supervisor of the 
said town and countersigned by the town clerk, and de¬ 
livered to the supervisor of the said town, who shall 
advertise the same for sale at public auction to the highest 
bidder, after one publication at least in one of the news¬ 
papers published in the county seat of the county in 
which such town is situated, at least two weeks before 
the date of sale. No such bond shall be sold for less than 
the par value thereof. All such bonds shall be numbered 
consecutively, and a record thereof kept of each by the 
town clerk and supervisor, showing the date, amount and 
date of maturity of each. All moneys to be derived from 
the sale of bonds shall be kept in a separate fund by the 
supervisor, and all orders for the payment of such moneys 
shall be drawn only by the authority of the town board, 
signed by the supervisor of the town, and countersigned 
by the town clerk. Before the supervisor shall advertise 
any such bond, he shall execute to such town, and file 
with the town clerk a special bond, with sufficient sure¬ 
ties, to be approved as to its form and sufficiency, by a 
majority of the town board, exclusive of the said super¬ 
visor, conditioned for the faithful execution of his duties 
in reference to the sale of said bonds, and applications of 
the proceeds under the direction of the said town board. 
At any time, when in the opinion of a majority of the 
members of such town board the moneys entrusted to 
such person as supervisor shall be deemed unsafe, or the 




The Highway Law of New York. 


319 


Laws 1895, chapter 499. 


surety insufficient, they may require a new and further 
bond, with like conditions as the first, and in such pen¬ 
alty and with such sureties as they may deem requisite 
and proper. Should default be made in the giving and 
filing of the bond as herein provided for, within the time 
limited herein, or if the supervisor neglect to renew his 
bond, as last hereinbefore provided for, the town clerk, 
at the request of the said board, shall cause a written 
notice to be served upon the person so in default requiring 
him to furnish such bond, or such renewal, as the case 
may be, within ten days from the day of service of such 
notice. 

§ 3. The work done on the roads and highways under 
and by virtue of the provisions of this act shall be awarded 
to the lowest responsible bidder, who shall furnish security 
satisfactory to the majority of the town board and high¬ 
way commissioners of the town. The said highway com¬ 
missioners and town board of such town are authorized 
and directed to advertise for any and all work done under 
the provisions of this act at least once a week for two 
weeks in a paper published in the county seat of the 
county in which such town is situated. Said advertise¬ 
ment for such work to be done shall contain a sufficient 
specification of the character and extent of the work to be 
done, and the places designated by a special town meeting 
in said town where the work is to be done. 

§ 4. This act shall take effect immediately. 




320 


The Highway Law of New Yoek. 


Laws 1895, chapter 611. 


LAWS 1895, CHAPTER 611. 


AN ACT in relation to certain highways in towns ivhich 
have expended three hundred thousand dollars or more for 
macadamizing purposes. 

Section 1 . Whenever the commissioners of highways 
of any town, in which during the past five years there has 
been expended the sum of three hundred thousand dollars, 
or more, for the purpose of macadamizing the highways 
of such town, shall by a majority vote of such commis¬ 
sioners, determine that any portion of any highway or 
street, not within the limits of an incorporated village, 
which is the terminus of such street or highway, is unnec¬ 
essary for highway purposes, the said commissioners may, 
by an order to be duly entered upon their minutes, order 
such highway to be discontinued and abandoned for public 
purposes. Provided, however, that no greater portion of 
such highway to be discontinued shall be more than five 
hundred feet of the terminus thereof, nor unless the con¬ 
sent of the owners of the land on both sides of such high¬ 
way or street for the distance it is proposed to discontinue 
the same, shall, by written petition to such highway 
commissioners, request the discontinuance thereof. 

§ 2. Immediately upon making and entering the order 
mentioned in the first section of this act, the said commis¬ 
sioners shall cause a written description of that portion 
of the street or highway ordered to be discontinued, to be 
filed and recorded in the office of the town clerk of the 
town in which the same said street or highway is located, 
and when the same is duly recorded, the said portion of 
the said street or highway shall thereupon be and become 
duly abandoned and discontinued for highway purposes. 




The Highway Law of New York. 


321 


Laws 1895, chapter 717. 

§ 3. All acts and parts of acts inconsistent with this act, 
in so far as they are inconsistent, are hereby repealed. 

§ 4. This act shall take effect immediately. 


LAWS 1895, CHAPTER 717. 

AN ACT to compel highway commissioners to file their 
contracts in certain cases. 

Section 1. Within twenty days after the passage of this 
act, it shall be the duty of the highway commissioners in 
each of the several towns of this state which has adopted 
the money system of taxation for highway purposes to file 
with the town clerk of the town in which said commis¬ 
sioners reside all contracts made by such commissioners 
by and on behalf of such towns for the construction, care 
and maintenance of the public highways located therein. 

§ 2. All commissioners of highways in towns wherein 
the money system of taxation has been adopted for high¬ 
way purposes shall, within ten days after any such contracts 
have been made as specified in section one of this act, file 
the said contracts with the town clerk of the town in which 
such highways are located. 

§ 3. Any person offending againt the provisions of this 
act is hereby declared to be guilty of a misdemeanor. 

§ 4. This act shall take effect immediately. 

21 





322 


The Highway Law of New Yoek. 


Laws 1896, chapter 309. 


LAWS 1896, CHAPTER 309. 

AN ACT to amend chapter two hundred and fifty-five 
of the laws of eighteen hundred and ninety-two, as 
amended by chapter seventy-nine of the laws of eighteen 
hundred and ninety-three, entitled “ An act to authorize 
the several towns of this state to establish lamp or lighting 
districts outside the limits of any incorporated village or 
villages therein, and to provide for the lighting of public 
buildings, streets, avenues, highways and public places in said 
district,” relating to districts in more than one town. 

Section 1. Section one of chapter two hundred and 
fifty-five of the laws of eighteen hundred and ninety-two, 
as amended by chapter seventy-nine of the laws of eighteen 
hundred and ninety-three, is hereby amended to read as 
follows: 

§ 1. It shall be lawful for the town board of any town 
in this state to contract for the lighting of the streets, 
avenues, highways, public places and public buildings 
therein, outside of the corporate limits of any incorpor¬ 
ated village in said town, upon such terms and for such 
time or period not exceeding ten years, as the town board 
may deem proper or expedient, and for the payment of 
the expenses thereof may establish one or more lamps or 
lighting districts therein. It shall be lawful for the town 
boards of two or more adjoining towns in this state when¬ 
ever a petition for the establishment of a lamp or lighting 
district shall cover territory lying in two or more adjoin¬ 
ing towns in this state, to contract for the lighting of the 
streets, avenues, highways, public places and public 
buildings therein, outside of the corporate limits of any 
incorporated village in said town upon such terms and 
for such time, or period not exceeding ten years, as the 




The Highway Law of New York. 


323 


Laws 1896, chapter 309. 


town boards of two or more adjoining towns in joint ses¬ 
sion assembled may deem proper or expedient and for the 
payment of the expenses thereof. 

§ 2. Section two of said act as amended is hereby 
amended to read as follows: 

§ 2. No such contract shall be made unless a petition 
for such lighting signed by not less than twenty-five of the 
taxable inhabitants of said town, shall be filed with the 
town clerk of said town. If such district shall lie in two 
or more adjoining towns, then the petition for such light¬ 
ing shall be signed by not less than twent}^-five of the tax¬ 
able inhabitants of said towns residing in said district and 
shall be filed with the town clerk of each of said towns. 

§ 3. Section three of said act as amended is hereby 
amended to read as follows: 

§ 3. The town board, or if such district shall lie in two 
or more adjoining towns, then the town boards of each 
such town shall cause notice of the same to be published 
for one week in one or more of the newspapers published 
in such town or towns, or if no newspaper be published 
in such town or towns, then by posting said notice in at 
least six public and conspicuous places in said district of 
the filing of said petition, and the time and place when 
the same will be acted upon by said town board, or if such 
lighting district lies in two or more adjoining towns, then 
when the same will be acted upon at a joint meeting of 
the town boards of such towns, to be held in the territory 
where such district is to be created. 

§ 4. Section four of said act as amended is hereby 
amended to read as follows: 

§ 4. The amount of any contract that may be entered 
into pursuant to the provisions of this act, shall be 





324 


The Highway Law of New York. 


Laws 1896, chapter 423. 


assessed, levied and collected upon the taxable property 
in said town or district in the same manner, at the same 
time, and by the same officers as the town taxes, charges 
or expenses of said town are now assessed, levied and col¬ 
lected, and the same shall be paid over by the supervisor 
to the corporation, company, person or persons furnishing 
or supplying said light. If the town boards of two or more 
adjoining towns shall, in joint session, establish a lamp or 
lighting district in two or more adjoining towns, they shall 
determine the relative proportion of the expense of such 
lighting which shall be borne by each of said towns, and 
the amount of such expense shall be assessed and levied 
on the taxable property in such lighting district in each 
of said towns, and collected in the same manner and at 
the same time, and by the same officers as the town taxes 
or charges or expenses of the town in which said district 
is located, are now assessed, levied and collected, and 
such relative expense shall be paid over by the supervisor 
of each of said towns to the corporation, company, person 
or persons furnishing or supplying said light. 

§ 5. This act shall take effect immediately. 


LAWS 1896, CHAPTER 423. 

AN ACT to preserve forever the Neiv York and Albany post 
road as a state public highway . 

Section 1. The old established road along the valley of 
the Hudson river from the city of New York to the city of 
Albany, known as the Albany post road, shall be a public 
highway for the use of the traveling public forever. 




The Highway Law of New York. 


325 


Laws 1896, chapter 464. 


§ 2. The said highway shall be kept open and free to all 
travelers, and shall not be obstructed in any way by any 
obstacle to free travel. 

§ 3. No trustees of any village or corporation of any 
city upon its route, or board of commissioners of high¬ 
ways of towns, or any other person or board whatever, 
shall have any power or authority to authorize or license 
the laying of any railroad track upon said highway, except 
to cross the same, and any such action shall be void and of 
no effect. 

§ 4. This act shall not apply to any portion of said road 
within the city of New York, nor shall it apply to the road 
of the president, directors and company of the Rensselaer 
and Columbia turnpike, nor to the villages, of Sing Sing 
or Peekskill, in Westchester county. 

§ 5. This act shall take effect immediately. 


LAWS 1896, CHAPTER 464. 

AN ACT to provide for payment of damages sustained by 
reason of discontinuance and closing of highways under 
chapter six hundred and eleven of the laws of eighteen hun¬ 
dred and ninety-five. 

Section 1. Any person or corporation interested as 
owner or otherwise in any lands and claiming any loss or 
damage, legal or equitable by reason of the discontinuance, 
abandonment or closing of any street or highway, not 
within ihe limits of an incorporated village, under or pur¬ 
suant to the provisions of chapter six hundred and eleven 






326 


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Laws 1897, chapter 269. 


of the laws of eighteen hundred and ninety-five or of any 
act amendatory thereof or supplemental thereto, may, upon 
ten days’ written notice to the highway commissioners of 
the town in which such lands are situated apply to the 
supreme court or to the county court of the county within 
which such lands are situated for the appointment of com¬ 
missioners to estimate and determine such loss and dam¬ 
age, whereupon the court shall appoint three disinterested 
commissioners of appraisal to estimate and determine such 
damage, and the amount of compensation to be paid by 
said town therefor, who shall make their report thereupon 
to such court, and which report when finally confirmed 
shall be final and conclusive in respect thereto and the 
legality and equity of any and all such claims shall be 
determined by such commissioners and by the court upon 
the hearing of their report. 

§ 2. Any loss or damage so estimated and determined 
shall be paid by said town as in case of judgment. 

§ 3. This act shall take effect immediately. 

LAWS 1897, CHAPTER 269. 

AN ACT to‘provide for the construction and maintenance 
of bridges over the waters between cities and towns or incor¬ 
porated villages in said towns. 

Section 1 . Whenever the highway commissioners hav¬ 
ing power in the premises under this act shall decide that 
the public convenience requires a bridge to be constructed 
over the stream or waters dividing a city from a town or 












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327 


Laws 1897, chapter 269. 


constructed under and according to the provisions of the 
highway law for the construction of bridges between towns, 
being article five of chapter nineteen of the general laws, 
the common council of the city being the highway com¬ 
missioners of said city, and the board of village trustees 
of any incorporated village in the town being the highway 
commissioners of said village. 

§ 2. Any land required for the approaches to said bridges 
for a distance not exceeding three hundred feet from the 
bridge, may be bought by the commissioners of high¬ 
way constructing the bridge, the approaches constructed 
and the cost thereof included in the cost of the bridge. 

g 3. When an agreement can not be made as to the price 
to be paid for the land for such approaches, the said land 
shall be condemned in the manner as provided by chapter 
ninety-five, laws of eighteen hundred and ninety, with the 
acts amendatory thereof. The expenses of said condemn¬ 
ation proceedings shall be included in and be a part of the 
cost of the bridge. 

§ 4. In order to pay for the said bridges, the city, or 
town, shall have the power to issue bonds to be known as 
bridge bonds of the said city or town as the case may be 
by the officers thereof and in the manner provided by law 
for the issue of other bonds of said city or town to an 
amount necessary to pay its proportion of the cost of said 
bridges which shall be borne equally by said city and town. 
The total amount of such bonds to be issued by the city 
shall not exceed twenty thousand dollars, or by a town, 
twenty thousand dollars. Said bonds shall not be sold for 
less than the par value thereof and accrued interest, if 
any; shall mature and be payable at a time not over thirty 
years from date; be of such denominations and bear such 




328 


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Laws 1897, chapter 286. 


interest, not exceeding five per centum per annum, as the 
common council of the city, in case of a city, or the town 
board, in case of the town, shall determine. The proceeds 
of the said bonds shall be paid to the proper officer for 
receiving funds of each municipality, and credited to a 
fund which shall be known as the bridge fund, and shall 
only be paid out by warrants, as other funds of said city 
or town are paid out. 

Amended by L. 1898, ch. 591. 

§ 5. This act shall apply only to towns from which at 
least one-quarter of the territory thereof has heretofore 
been taken for park purposes, and which also adjoin a 
city containing at the time of the taking of the last fed¬ 
eral census a population of one and one-half million. 

§ 6. This act shall take effect immediately. 

Note.— Probably only applies to some town adjoining New York City. 


LAWS 1897, CHAPTER 286. 

AN ACT to provide for the widening and improving of 
highways in towns having a total population of eight thousand 
or more inhabitants and containing an incorporated village 
having a total population of not less than eight thousand and 
not more than fifteen thousand inhabitants. 

Section 1 . In any town, having a total population of 
eight thousand or more inhabitants and containing an 
incorporated village having a total population of not less 
than eight thousand and not more than fifteen thousand 
inhabitants, except in the county of Madison, any five 




The Highway Law of New York. 


329 


Laws 1897, chapter 286. 


or more persons owning lands adjoining or abutting on 
any highway, which extends within the limits of such 
town and without the limits of such incorporated village 
for a distance of at least two and one-half miles, may pre¬ 
sent to the supreme court, at a special term thereof to be 
held in the county containing said town, a petition for the 
appointment of three commissioners for the purpose of 
widening and improving such highway or a certain specified 
portion thereof not less than two miles and a half in length, 
such portion being wholly without the limits of such incor¬ 
porated village. Such petition shall describe the part of 
the highway proposed to be widened and improved by 
stating its location and the length and limits of the por¬ 
tion thereof proposed to be widened and improved, and 
shall state the width of the proposed widening and the 
character of the proposed improvement, and shall also 
state and give the exterior lines of said portion of said 
highways as proposed to be made by such widening, and 
shall have annexed thereto a diagram or map showing 
such proposed exterior lines. Such petition shall be 
signed by all of the petitioners and verified by at least 
three of them. Notice of the presentation of such peti¬ 
tion to such court shall be given by the petitioners by pub¬ 
lishing such notice in two newspapers published in such 
town, if there be such newspapers published therein, and 
if not in two newspapers published in such county, once 
in each week for two weeks successively preceding the day 
of such presentation. Such notice shall be signed by at 
least three of said petitioners and shall set forth the time 
and place when such presentation will be made and that 
the same will be made pursuant to this act. Upon such 
presentation such court shall, after hearing any person 
interested or claiming to be interested in any land within 
such town, who may appear, appoint three disinterested 
persons, who shall not reside or be freeholders within 





330 


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Laws 1897, chapter 286. 


such town, as commissioners. And in case auy of such 
commissioners shall at any time decline to serve or die or 
for any cause become disqulaified or disabled from serving 
as such, the said court, at a similar special term, may 
upon similar notice and application and hearing, appoint 
another or other persons similarly qualified to fill the 
vacancy or vacancies and to act in their place and stead. 

§ 2. The said commissioners shall take the oath of office 
prescribed by the constitution of this state, which oath 
shall be filed in the office of the town clerk of said town, 
and a copy thereof, certified by such clerk, in the office 
of the county clerk of such county. The commissioners 
shall then proceed with all reasonable diligence to exam¬ 
ine such highway and the portion thereof proposed by said 
petition to be widened and improved and the lands adjoin¬ 
ing or abutting on such portion, and may enter upon said 
lands for such purpose. After having made such examin¬ 
ation they shall appoint a time and place within said town 
for a meeting to hear all persons interested in such widen¬ 
ing and improving They shall cause notice of such meet¬ 
ing to be given by publishing a notice, stating the time 
and place of such meeting, in at least two newspapers 
published in said town, if such there be, and if not, in 
two newspapers published in said county once in each week 
for two weeks successively next preceding the day of such 
meeting. At such meeting they shall hear the proofs and 
allegations of any party interested or claiming to be inter¬ 
ested who may appear; and they shall have power to 
adjourn such meeting from time to time for such purpose. 
The said commissioners shall thereafter and with all 
reasonable diligence determine whether or not such pro¬ 
posed widening and improving shall be made. They shall 
make and sign duplicate certificates of their decision and 
file one of such certificates in the town clerk’s office of said 




The Highway Law of New York. 


331 


Laws 1897, chapter 286. 


town and the other in the county clerk’s office of such 
county. 

§ 3. If the said decision of such commissioners shall be 
against the making of such widening and improvement, 
their duties under this act shall cease and they shall be 
entitled to receive from and be paid by such town for their 
services at the rate of five dollars a day not to exceed one 
hundred dollars; but if such decision shall be in favor of 
the making of said widening and improvement, then the 
said commissioners shall continue in the discharge of their 
duties as hereinafter provided. 

§ 4. The said commissioners shall prepare a map show¬ 
ing the present lines and boundaries of said portion of 
such highway before being widened and also the lines and 
boundaries of such portion as to be widened, and also 
designating the several lots, pieces or parcels of land neces¬ 
sary to be taken for such widening and for such purposes 
may enter upon such lands. They shall sign said map 
and file the same in the office of the town clerk of such 
town. 

§ 5. Said commissioners shall then cause a notice to be 
published, in two such newspapers as aforesaid once in 
each week or two weeks successively next preceding the 
day of the meeting mentioned in such notice, that at a 
stated time and place within said town they will meet for 
the purpose of hearing any and all parties interested or 
claiming to be interested in the amount of damages to be 
awarded for the lands to be taken for such widening. 
Said notice shall also state the fact that said map has been 
filed as aforesaid. At the time and place of said meeting 
and at any adjournment thereof, which said commis¬ 
sioners may publicly make, they shall hear the proofs and 






332 


The Highway Law of New York. 


Laws 1897. chapter 286. 


allegations of any and all parties interested or claiming to 
be interested in the amount of said damages. The said 
commissioners shall therefore make and sign a report in 
writing, in which they shall assess, allow and state the 
amount of damages to be sustained by the owners of the 
several lots, pieces and parcels of land to be taken for said 
widening. Such report shall contain the names of such 
owners; except that in case the commissioners are unable 
after due diligence to ascertain the name or names of the 
owner or owners of any parcel of land to be taken for said 
widening as aforesaid, they may, in place of the name of 
such undiscovered parties, insert the words “unknown 
owner” in their said report. The said commissoners 
shall then file their said report in the office of the town 
clerk of said town. After said report shall have been 
completed and filed as aforesaid, the commissioners shall 
cause a notice to be published in two such newspapers as 
aforesaid once in each week for two weeks successively 
that their said report has been completed and filed and 
that they will meet at a time or place in said town therein 
specified, not less than ten days from the first publication 
of said notice, to review their report, and that at said time 
and place any person interested or claiming to be inter¬ 
ested, may offer objections in writing to such report and 
accompany the same with such affidavits as he may think 
proper. The commissioners at such meeting shall hear 
the proofs and allegations of any party interested or claim¬ 
ing to be interested, who may appear, and they shall have 
power to adjourn such meeting from time to time for such 
purpose. The commissioners shall thereupon review their 
said report and correct the same, where they shall deem 
proper, and shall thereafter refile the same with the said 
town clerk; and the commissioners shall thereupon, after 
publishing a notice in like manner as that provided in the 
first section hereof for the publication of the notice therein 









The Highway Law of New York. 


333 


Laws 1897, chapter 286. 


provided for, apply to the supreme court, at a special term 
thereof to be held in such county, to have the said report 
confirmed. Upon the hearing of such application for con¬ 
firmation such court shall hear in opposition only the objec¬ 
tions in writing and the accompanying affidavits, which 
have been presented to the commissioners as above pro¬ 
vided. If no sufficient reason to the contrary shall 
appear, the court shall affirm the said report. Otherwise 
it may refer the same back to the said commissioners for 
revision or correction; and after such revision or correc¬ 
tion the same proceedings shall be taken as are hereinbe¬ 
fore provided for at and after the first meeting of the com¬ 
missioners for the revision or correction of such report. 
The commissioners shall thereupon, in the same manner as 
hereinbefore provided for, make renewed application for 
the confirmation of such report and the court shall there¬ 
upon affirm or refer back the said report; and such pro¬ 
ceedings shall be repeated until a report shall be presented,, 
which shall be confirmed by the said court. 

§ 6. Within six months after the report of said commis¬ 
sioners shall be refiled and confirmed as aforesaid, the 
supervisor of such town shall out of the proceeds of the 
bonds hereinafter mentioned, pay to the several and 
respective persons named in such report respectively the 
amounts awarded to them for damages as aforesaid with 
six per centum interest thereon from the day of the con¬ 
firmation of said report, which amounts with such interest 
are hereby made and declared to be charges upon said 
town; except in cases where the persons named in such 
report shall be liable to be assessed for the improvements 
herein, in which cases the amount of the assessment here¬ 
inafter provided for shall be first deducted and the balance 
only (if any) paid to the owners. And in case there are 
any unknown owners named in said report, the said super- 




334 


The Highway Law of New Yoke. 


Laws 1897, chapter 286. 


visor shall deposit the amounts awarded to them with like 
interest in some trust company in such manner as the said 
court shall in the order of confirmation direct, such 
amounts to be paid out upon the application of said 
unknown owners when discovered. From the date of the 
confirmation of such report by the order of the said court 
the title of all the lands therein designated to be taken for 
the said widening shall vest in such town for the purposes 
of a highway forever. 

§ 7. After the confirmation of the said report the super¬ 
visor of the said town shall from time to time, upon the 
written requisition of the said commissioners, for the pur¬ 
pose of paying the said land damages and the expenses of 
the said improvement, make, execute and issue in due 
form the bonds of the said town for not to exceed the 
aggregate sum of seventy-five thousand dollars principal, 
in denominations of one thousand dollars each. The faith 
and credit of the said town is hereby pledged for the pay¬ 
ment of the said bonds, principal and interest. The said 
bonds shall bear interest at not to exceed five per centum 
per annum, such interest to be payable semi-annually. 
They shall become due and payable, the first two thousand 
dollars thereof at the expiration of ten years from the day 
of their issue and two thousand dollars thereof in each and 
every year after said ten years, until all of the same shall 
have become due and payable. Each of said bonds shall 
contain a recital that it is issued under the provisions of 
this act; and such recital shall be conclusive evidence in 
any court of the validity of such bond and of the regularity of 
its issue. Each such bond shall be signed by the supervisor 
of such town and countersigned by the town clerk thereof. 
All of such bonds shall be numbered consecutively and a 
record thereof shall be kept by such town clerk showing 
the number, date, amount and date of maturity of each. 




335 


The Highway Law of New Yoke. 

Laws 1S97, chapter 286. 


The said bonds shall be sold by the supervisor for not less 
than their par value and accrued interest, if any. All 
moneys derived from the sale of said bonds shall be kept 
in a separate fund by the said supervisor and shall be paid 
out by him only upon orders signed by the said commis¬ 
sioners and shall be applied only to meet and defray 
disbursements under this act, except that the said super¬ 
visor shall, without any order signed by said commis¬ 
sioners, out of the said funds, pay to the parties entitled 
thereto or to such trust company as above provided the 
amounts awarded in such report as confirmed for damages 
for lands taken or to be taken; and the said supervisor 
shall be entitled to receive one per centum, and all neces¬ 
sary expenses or disbursements, on all moneys disbursed 
by him thereunder. 

§ 8. In case the town board of said town shall deem it 
necessary or proper so to do, they may make an order to 
be entered on their minutes, designating one or more good 
and solvent banks, bankers or banking associations in said 
county for the deposit of all moneys received by the super¬ 
visors upon the sale of said bonds; and said commissioners 
shall have power and authority to agree with any such 
bank, banker or banking association so designated, upon 
a rate of interest per annum to be paid on the mone}^ when 
deposited; and the accrued interest thereon as often as 
once in six months be credited by such depository or de¬ 
positories to the account of such funds; and it shall be the 
duty of said supervisor, upon the making of such order of 
said board, to forthwith deposit all sums of money received 
by him from the sale of such bonds with such depository 
or depositories so selected by said board; and thereupon 
said supervisor shall be relieved and released from all 
liabilities occasioned from any loss of said money while 
upon deposit with such depository or depositories, but 








336 


The Highway Law of New York. 


Laws 1897, chapter 286. 


nothing herein contained shall be held to relieve said 
supervisor of responsibility for the loss of any such moneys, 
while they are in his hands. 

§ 9. The said commissioners, after the completion of 
said report, shall make and sign the necessary plans and 
specifications for the work and materials necessary for 
making said widening and improvement, and shall file the 
same in the office of said town clerk. They shall then 
publish, in the manner provided in section one hereof for 
the publication of the notice therein provided for, a notice, 
that they will receive at a time and place therein desig¬ 
nated, sealed proposals for such work and materials. All 
bids or proposals received in response to said advertise¬ 
ments shall be publicly opened at such meeting of said com¬ 
missioners; and they shall award each contract for which 
bids and proposals have been so advertised for, as afore¬ 
said, to the lowest bidder therefor; or they may reject any or 
all bids, and readvertise as often as they may deem it to be 
best so to do, and shall continue to do so until bids acceptable 
to said commissioners shall have been received. Said con¬ 
tract or contracts when awarded, shall be executed by the 
supervisor of such town under the direction of the afore¬ 
said commissioners in behalf of said town. All contracts 
when awarded shall be executed in writing and in dupli¬ 
cate by the contractor or contractors on the one part, and 
said supervisor and commissioners acting for such town on 
the other part. One of said original contracts shall be 
delivered to the said contractor or contractors and the 
other shall be filed in the town clerk’s office of said town. 
The work and materials called for by said contractor or 
contractors shall be done and furnished under the direction 
and supervision, and subject to the inspection of said 
commissioners; and in no event shall such town be 
held in any action brought or had under any contract 




The Highway Law of New York. 


337 


Laws 1897, chapter 286. 


so made to any other or greater liability than that 
expressed therein, nor required to pay out or other¬ 
wise dispose of any sum of money for the doing of such 
work or the furnishing of such materials greater than 
is stipulated in such contract, nor otherwise than in 
strict conformity with the stipulations thereof. In 
case any work shall be abandoned by any contractor, 
or his contract terminated pursuant to the provisions 
thereof, it shall be readvertised and relet in the manner in 
this act provided for the original letting of said work. No 
extra work or materials shall be done or furnished or 
allowed for unless the same is allowed by said commis¬ 
sioners or a majority of them in writing before the same 
is done. Each bidder to whom a contract or contracts is 
awarded as hereinbefore 'provided, shall give a bond to 
said town with two or more sureties for the faithful per¬ 
formance of his contract in such sum as shall be prescribed 
by said commissioners; and the said town may bring and 
maintain action upon any such bond. 

§ 10. No surface railway shall be constructed on any 
said highway so widened, except within eleven feet on 
each side of the center line of said highway, and no such 
railway shall be operated by horse or horses. A distance 
of not less than twenty feet on each side of such twenty- 
two feet so reserved for railroad purposes shall be im¬ 
proved for highway purposes and not less than sixteen feet 
of said twenty feet shall be of macadam. Sidewalks shall be 
graded on each side of said highway to a width of not less 
than fifteen feet each. 

§ 11. The said commissioners may employ counsel and 
an engineer and other assistants to advise and assist them 
in the discharge of their duties under this act. The com- 
22 





338 


The Highway Law of New York. 


Laws 1897, chapter 286. 


pensation of such counsel, engineer and assistants shall 
be audited and fixed by the commissioners and shall be a 
charge upon the said town and shall be paid by the super¬ 
visor of such town out of the proceeds of said bonds, upon 
the order or orders of said commissioners, except that in 
case the decision of said commissioners, provided for in 
sections two and three of this act, be against the widening 
and improving of such highway, then the compensation 
of such counsel, engineer and assistants shall be paid by 
the said town in the same manner in which ordinal 
charges against said town are paid, except that the audit 
thereof by the] said commissioners shall in all respects be 
final and conclusive. In case such decision be in favor of 
said widening and improving, then the fees of the said 
commissioners shall be the rate of five dollars a day to 
each for his services, not exceeding however in the aggre¬ 
gate the sum of five hundred dollars to each, and shall be 
audited by the supervisor of said town and paid by him 
out of the proceeds of said bonds, without any order of 
said commissioners. 

§ 12. When the said commissioners shall determine that 
the said work of widening and improving said highway has 
been completed, they shall file in the office of the town 
clerk of such town their certificate stating such conclusion 
and the entire cost of the making of said widening and 
improvement. The assessors of such town shall thereafter 
proceed to assess upon and against the several lots, pieces 
and parcels of land situated within the district of assess¬ 
ment hereinafter provided, one-half of said entire cost, as 
stated in said certificate, in proportion to the benefits, 
which such lots, pieces and parcels of land in the judg¬ 
ment of said assessors have received and will receive 
respectively from such widening and improving. The said 
district shall include all the several lots, pieces and par- 




The Highway Law oe Hew York. 


339 


Laws 1897, chapter 286. 


cels situated within the limit of the said town and outside 
of the limits of said village. Of any lot, piece or parcel of 
land being within said town and partly within and partly 
without said village, the portion being without said vil¬ 
lage shall be deemed a separate lot, piece or parcel and 
shall be included in such district. The said assessors 
of said town shall make a list of all the several lots, 
pieces or parcels of land included in said district of 
assessment and file the same in the office of the town 
clerk of such town. They shall thereupon give public 
notice of the time and place of a meeting to be held by 
them, by publishing such notice in the manner provided 
in the first section hereof for the publication of the notice 
therein provided for. Such notice shall state that at the 
time and place therein designated the said assessors will 
meet and hear any person interested or claiming to be 
interested in any of said lands. At such meeting they 
shall hear the proofs and allegations of all parties, having 
or claiming to have any interest in said lands, who may 
appear and desire to be heard. The said assessors shall 
thereafter assess upon and against the said several lots, 
pieces and parcels of land included in said district of assess¬ 
ment, one-half of said entire cost in proportion to the 
benefit which in the judgment of the said assessors has 
accrued or will accrue to said lots, pieces or parcels of land 
respectively from the widening and improving the said 
highway. The said assessors shall prepare and sign a list 
of such assessments which shall state each of said lots, 
pieces and parcels of land and the amount assessed by them 
upon and against it separately and also the name of the 
owner of each of said lots, pieces or parcels of land, where 
by reasonable diligence they can ascertain it and where 
they can not ascertain such name then they shall state the 
name as “unknown owner.” The said assessors, after 
completing such list, shall file the same in the office of 




340 


The Highway Law of New York. 


Laws 1897, chapter 286. 


the town clerk of said town and shall give public notice 
of a meeting to be held by them at a specified time and 
place within said town for the purpose of hearing any 
objections to such list and assessment. Such notice shall 
be published in the same manner as provided in section 
one hereof for the publication of the notice therein pro* 
vided for. At the time and place mentioned in said notice 
the said assessors shall meet and hear any and all objec¬ 
tions, which may be presented to them to the said list 
and assessment or any part thereof and may publicly 
adjourn their meeting for such purpose and they shall 
consider and determine upon said objection; and the}? may 
revise said list or amend the same and shall correct 
any error therein and after having made any corrections, 
that in their judgment may be proper, they shall con¬ 
firm the said list and assessment as thus corrected and 
refile the same in the office of said town clerk; and 
such clerk shall indorse upon said list the date and minute 
of said refiling and from that moment the assessments 
made by said list shall become and be liens upon and 
against the several lots, pieces and parcels of land respec¬ 
tively mentioned therein. The said assessments shall 
become due and payable in ten equal annual installments; 
the first of such installments on the first day of March 
next following' the refiling of said list, and one of the 
others on the first day of March iu each and every year 
thereafter until all the same shall become due. And each 
of said installments shall bear interest at the rate of six 
per centum from the date of the refiling of such list as 
aforesaid. The supervisor of said town shall forthwith 
after each of said installments becomes due, provided same 
is still unpaid, issue a warrant under his hand and seal as 
such supervisor to the receiver or collector of taxes of said 
town for the collection of such installment with interest as 
aforesaid, which warrant shall be in the form as nearly as 




The Highway Law of New Yoke. 


341 


Laws 1897, chapter 286. 


may be of the warrant issued by the board of supervisors 
to such tax collector or receiver for the collection of the 
annual taxes in and of said town; and such proceedings 
shall be taken upon such warrant and for the collection of 
such installment with interest and for the sale of such 
lands for the non-payment thereof as are taken under such 
warrants issued by the board of supervisors of such county 
for the collection of the annual taxes of such town and as 
are taken for the sale of lands in said town for the non¬ 
payment of such taxes. But the owner of any such lands 
may at any time pay the entire amount of such assessment 
against them unpaid, with interest to the date of payment. 
All money received or collected upon or for said assess¬ 
ments shall be paid to the supervisor of said town and 
shall by the vote of the town board thereof of said town be 
applicable to the payment of any charge against such 
town. 


§ 13. The amount of said bonds becoming due in any 
one year and of the interest accruing thereon in any one 
year shall be a charge upon and against said town and 
shall be levied and assessed and collected upon and against 
the taxable property in said town in the same manner as 
other town charges are by law to be levied, assessed and 
collected. 

§ 14. This act shall take effect immediately. 

(This act held unconstitutional, as being in violation of § 18, article 3> 
of the Constitution. Matter of Henneberger, 25 App. Div. 164.) 






342 


The Highway Law of New York. 


Laws 1897, chapter 481. 


LAWS 1897, CHAPTEK 481. 

Section 21. There shall be elected at the town meeting 
in each town, in the spring of eighteen hundred and 
ninety-eight, one supervisor, one town clerk, one highway 
commissioner, one assessor, one collector, one or two over¬ 
seers of the poor, not more than five constables and two 
inspectors of election for each election district, all of whom 
shall hold office for a term of one year. At the town 
meeting to be held in the spring of eighteen hundred and 
ninety-nine, all of such officers shall be elected in the 
manner and for the terms prescribed in this act. There 
shall be elected at the town meeting to be held in the 
spring of eighteen hnndred and ninety-eight, one justice of 
the peace for a term of four years, beginning on the first 
day of January, eighteen hundred and ninety-nine. At 
the town meeting to be held in the spring of eighteen 
hundred and ninety-nine, there shall be elected two jus¬ 
tices of the peace for a term of four years, beginning on 
the first day of January, nineteen hundred; and at the 
biennial town meetings thereafter held there shall be 
elected two justices of the peace for a like term, beginning 
on the succeeding first day of January. At the town 
meeting to be held in the spring of eighteen hundred and 
ninety-nine, there shall be elected three assessors, two for a 
full term of two years and one for a term of one year, 
beginning at the expiration of the term of office of the 
assessor, whose term will expire in the spring of nineteen 
hundred. At every biennial town meeting thereafter held, 
three assessors shall be elected for a term of two years. 
If in any town there are three commissioners of highways, 
there shall be elected at the town meeting to be held in 
the spring of eighteen hundred and ninety-nine, three com¬ 
missioners of highways, two for a term of two years and 
one for a term of one year, beginning at the expiration of 






The Highway Law of New York. 


348 


Laws 1897, chapter 481. 


the term of office of the commissioner whose term will 
expire in the spring of nineteen hundred. At every bien¬ 
nial town meeting thereafter held in any such town, three 
commissioners of highways shall be elected for a term of 
two years. The provisions of this act shall not affect or 
abridge the term of office of any town officer elected prior 
to the passage of this act. 

In those towns where boards of town auditors have been 
established by law and are in existence at the time of 
holding of the annual town meeting in the spring of 
eighteen hundred and ninety-eight, the person elected to 
the office of town auditor, at the said annual town meet¬ 
ing in the spring of eighteen hundred aud ninety-eight, 
whether so elected before or after the passage of this act 
shall hold office for the term of one year beginning at the 
expiration of the term of office of the auditor whose term 
of office will expire in the spring of eighteen hundred and 
ninety-eight. At the biennial town meeting held in the 
spring of eighteen hundred and ninety-nine, in those towns 
where board of town auditors have been so established 
there shall be elected three town auditors, two for a full 
term of two years and one for a term of one year begin¬ 
ning at the expiration of the term of office of the auditor 
whose term of office will expire in the spring of nineteen 
hundred. At every biennial town meeting thereafter held 
in those towns where boards of town auditors have been 
established, as provided by law, three town auditors shall 
be elected, for a term two years. (Amended by L. 1898 , 
ch. 4.71/,.) 

Part of an act to amend the Town Law. 






344 


The Highway Law of New York. 


Laws 1897, chapter 483. 


LAWS 1897, CHAPTER 483. 

AN ACT entitled an act to amend chapter five hundred 
and thirty-three of the laws of eighteen hundred and 
eighty, entitled “ An act to regulate the passage of lumber , 
logs and other timber, upon the rivers of this state , recognized 
by law or common use as public highways, for the purpose 
of floating or running lumber , logs and other timber, over 
or upon the same to market or places of manufacture as 
amended by chapters sixteen and seventy-four of the laws 
of eighteen hundred and eighty-one, as amended by chap¬ 
ter three hundred and eighty-five of the laws of eighteen 
hundred and ninety-one, as amended by chapter six hun¬ 
dred and eighty-three of the laws of eighteen hundred and 
ninety-six. 

Section 1. Section three of chapter five hundred and 
thirty-three of the laws of eighteen hundred and eighty, is 
hereby amended to read as follows: 

§ 3. Persons desirous of floating or running lumber, 
logs or other timber down the rivers mentioned in the first 
section of this act may construct a chute or apron in con¬ 
nection with any dam across said rivers, and may recon¬ 
struct any booms or other works already contructed in, 
over or across said rivers in such manner as to allow lum¬ 
ber, logs or other timber to pass by the same, and may 
remove obstructions in said rivers and construct such 
other piers, booms or other works as may be necessary 
for the passage of lumber, logs or other timber over and 
through the channels of said rivers, doing no injury or 
damage to the owner or occupant of such boom, dam or 
other works, or to the owner or occupant of any land on 
which such piers, booms, dams or other works may be con¬ 
structed, or lands flooded thereby, and pay to such owner 






The Highway Law of New York. 


345 


Laws 1897, chapter 596. 


or occupant such damages as lie or they may sustain by 
reason of the construction of such piers, booms or other 
works, or the flooding of lands thereby, and paying also 
all damages and loss that may be occasioned or done to 
any and all property, public or private, in or upon said 
river or its banks, by reason of the floating of logs or lum¬ 
ber, or by reason of the removal of obstructions in the 
floatable channel of said river, and in case the amount of 
such damage cannot be amicably arranged by the parties 
interested, the same shall be appraised by three commis¬ 
sioners, to be appointed by the supreme court of the judi¬ 
cal district wherein the property is situated, on the appli¬ 
cation of any person interested in the appraisal of such 
damage, on three days notice, in writing, to the opposite 
parties of the time and place of making such application. 
Such booms and other works which shall be so constructed 
as aforesaid, and the owners and occupants thereof shall 
hereafter be subject to the provisions of section two of this 
act. This act shall apply to all statutes of this state 
declaring streams and rivers public highways for the float¬ 
ing of logs, unless otherwise provided, and shall be deemed 
to be supplemental thereto, so far as there is or may be 
any failure in any of such acts to provide for full and 
complete compensation to the riparian owner or those 
having vested rights upon such streams or river for any 
and all damages occasioned by making such streams or 
rivers public highways for the purpose of floating logs, the 
intent of this statute being to provide compensation to 
the riparian owner in all cases where rivers and streams 
have been declared to be public highways for the purpose 
of floating logs where no compensation has been provided 
therein to the riparian owners, and to those having vested 
rights upon said streams and rivers. 


2. This act shall take effect immediately. 




346 


The Highway Law of New York. 


Laws 1897, chapter 596. 


LAWS 1897, CHAPTER 596. 

AN ACT to authorize the acquisition of turnpikes and 
plank-roads by counties adjoining cities of more than eight 
hundred thousand and less than fifteen hundred thousand 
inhabitants , and by villages in such counties. 

Section 1. If in any county adjoining a city having at 
any time by the last preceding state or federal enumeration 
a population of more than eight hundred thousand and 
less than fifteen hundred thousand inhabitants, a turn¬ 
pike or plank-road shall have been laid out, maintained 
or operated by an incorporated turnpike or plank-road 
company from any point in such county to or into any 
such city, and a street surface railroad corporation shall 
have acquired or succeeded to the rights or to any of the 
rights of such turnpike or plank-road company, then and 
in such case the board of supervisors of such county, in 
the name and in behalf of such county, is authorized to 
acquire by purchase or condemnation so much of such 
turnpike or plank-road as shall be situated in such county, 
for the purpose of laying out, maintaining, improving and 
repairing such portion of such turnpike or plank-road as 
a public highway and as a county road, subject to the reten¬ 
tion of the fee thereof by such turnpike, plank-road or 
street surface railroad corporation, and subject also to all 
then existing rights, franchises and privileges of any such 
turnpike, plank-road or street surface railroad corporation 
to construct, maintain and operate a street surface rail¬ 
road upon and along such portion of such turnpike or 
plank-road substantially as then located, with such 
switches, crossovers, sidings and turnouts as may from 
time to time be necessary to the reasonable and convenient 
operation of such railroad except as may be otherwise 
agreed between such board of supervisors and any such 






The Highway Law of New York. 


347 


Laws 1897, chapter 596. 


corporation. And such board of supervisors in the name 
and in behalf of such county may make further agreements 
as to the terms and conditions upon which such street 
surface railroad shall thereafter be operated by any such 
corporation; and the acquisition by any such county by 
condemnation of any right, title or interest in and to such 
turnpike or plank-road shall be subject to such agree¬ 
ments, if any be so made. 

§ 2. The board of supervisors of any such county may 
thereafter adopt and incorporate into the county road sys~ 
tern of the said county and improve the roadbed and side¬ 
walks or any portion thereof of such turnpike or pank-road 
athough the same or any part thereof be within the cor¬ 
porate limits of one or more incorporated villages, and for 
that purpose may issue the bonds of the said county for 
the payment of the expenses of the acquisition, repair and 
improvement of the said road in the same manner as now 
provided by the general law in relation to county roads, 
and shall apportion the expense thereof among the several 
towns and city or cities of said county, or charge the same 
wholly to one or more of said towns as to said board 
may seem equitable and just. 

§ 3. If the board of supervisors of any such county shall 
by resolution determine not to acquire such portion of any 
such turnpike or plank-road as shall be located in any 
incorporated village in such county, or shall not within 
six months from the passage of this act acquire, by pur¬ 
chase, such portion of such turnpike or plank-road as shall 
be situated in any such village, or shall not within such 
six months commence proceedings to acquire such portion 
thereof by condemnation, then the board of trustees of 
any such incorporated village is authorized in the name 
and in behalf of such village to acquire by purchase or 




348 


The Highway Law of New York. 


Laws 1897, chapter 596. 


condemnation for the purpose of a public highway the 
same right, title and interest in and to such portion of 
such turnpike or plank-road as may be situated in such 
Village, and to make the same agreements relating to 
such portion thereof as by the first section of this act the 
board of supervisors of such county is authorized to ac¬ 
quire and make as to such portion of such turnpike or 
plank-road as is situated in the county. In case of such 
acquisition by any such village, the expense and cost of 
acquiring, maintaining and improving such portion of 
any such turnpike or plank-road as shall be so acquired 
shall be borne entirely by the village acquiring, maintain¬ 
ing and improving the same, and such village may issue 
its bonds to pay for the expense and cost thereof. 

§ 4. This act shall take effect immediately. 





The Highway Law of New York. 


349 ' 


Laws 1898, chapter 45. 


LAWS 1898, CHAPTER 45. 

AN ACT to authorize the construction and maintenance 
of bicycle paths or wheelways within the limits of the high - 
ways in Cattaraugus county. 

Section 1. Any individual or individuals, corporation, 
association or bicycle club, residing or having an office in 
Cattaraugus county, is hereby authorized and empowered, 
with the consent of the commisssioner of highways of the 
town, or in villages, the board of trustees thereof, to con¬ 
struct bicycle paths or wheelways, not over six feet in 
width, within the limits of any or all of the highways, 
outside of the main traveled portion thereof, in any or all 
of the towns and villages of Cattaraugus county, and 
thereafter to use and maintain the same. 

§ 2. All bridges, sluiceways, culverts, trestles, cross¬ 
ings and the path or wheelway itself shall be so constructed 
as to not interfere with that portion of the highway in use 
by teams and vehicles, except by the consent of the com¬ 
missioner of highways of the respective towns or the trus¬ 
tees of a village in which the said path or wheelway is 
being constructed. 

§ 3. Any and all crossings of the highway shall be con¬ 
structed at grade therewith, and at all places where ingress 
and egress is had, to and from the adjacent property, suit¬ 
able crossings shall be constructed and maintained. The 
said paths or wheelways shall be constructed as nearly on 
a grade with the highways as the grade and condition of 
the lands on the sides thereof will permit, without making 
unnecessary cuts and fills. 

§ 4. All portions of any said paths or wheelways which 
have already been constructed or which may hereafter be 




350 


The Highway Law of New York. 


Laws 1898, chapter 45. 


constructed, may be used for bicycle and tricycle riding, 
and by pedestrians, and shall not be used for any other 
purpose or purposes. 

§ 5. The placing or causing to be placed upon any part 
of said paths or wheelways, of any iron, glass, earthen¬ 
ware or any other substance or substances injurious to 
bicycle tires or liable to be injurious thereto, and the injur¬ 
ing or obstructing of any of the said paths or wheelways 
in any manner, and the leading, riding or driving of any 
horse or horses or any other animal or animals on any of 
the said paths or wheelways, and the drawing or placing 
of any wagon, buggy, cart, sleigh, cutter or any other 
conveyance on any portion of any said paths or wheelways, 
and the wilful leading, driving or allowing of any animal 
to walk or run upon any of the said paths or wheelways, 
is hereby prohibited. 

§ 6. Nothing in this act shall be construed to prohibit 
the lawful crossing of the said paths or wheelways with 
any animal or animals or with any conveyance or con¬ 
veyances. 

§ 7. Any person who shall do or commit any of the acts 
hereinbefore prohibited shall be guilty of a misdemeanor. 

§ 8. This act shall take effect immediately. 




The Highway Law of New York. 


351 


Laws 1S98, chapter 71. 


LAWS 1898, CHAPTER 71. 

AN ACT to authorize the board of supervisors of Monroe 
county to appoint a board of sidepath commissioners , and to 
provide revenue for the repair and construction of sidepaths 
for bicycles . 

Section 1 . The board of supervisors of Monroe county 
is hereby authorized to appoint from the resident citizens 
of such county five persons, at least three of whom shall 
be residents of the city of Rochester, who shall constitute 
a board of sidepath commissioners for such county, who 
shall serve without compensation, except their actual and 
necessary disbursements in the performance of their duties 
and whose terms of office shall be designated respectively 
at one, two, three, four and five years. Thereafter, as 
the term of office of each commissioner expires, or when¬ 
ever a vacancy shall occur in such board, the board of 
supervisors shall appoint a successor thereto for a full 
term of five years. The county judge of said county may 
appoint live persons to act as such commissioners until the 
board of supervisors shall make such appointments. 

§ 2. Such board of sidepath commissioners shall, upon 
entering upon its duties, and in each calendar year there¬ 
after, determine upon a form of license, to consist of a 
suitable inscription or device to be affixed or attached to a 
bicycle, and shall, upon payment of a fee of twenty-five 
cents, cause the same to be affixed or attached in some 
prominent place upon each bicycle presented for such pur¬ 
pose. Each such license shall be valid during the calen¬ 
dar year in which it is so attached or affixed to a bicycle, 
and no longer. The sidepaths now and hereafter con¬ 
structed in said county are hereby declared to be for the 
exclusive use of bicycle riders, except that where necessary, 






352 The Highway Law of New York. 


Laws 1898, chapter 71. 


the same may be used by pedestrians; but no person resid¬ 
ing in such county shall ride a bicycle thereon unless there 
shall appear upon it a valid license issued as above pro¬ 
vided. 

§ 3. The license fees collected by the said board of side- 
path commissioners shall be deposited on the first day of 
each month with the county treasurer, by whom it shall 
be credited to a special fund to be called “the sidepath 
fund,” upon which the board of sidepath commissioners 
are authorized to draw warrants, but no warrant shall be 
so drawn in excess of the amount actually on deposit, nor 
shall any contract or purchase be made exceeding the 
amount of such fund at the time of making such contract or 
purchase. 

§ 4. The said board of sidepath commissioners shall 
devote the moneys so collected to the repairing of existing 
sidepaths in the county of Monroe, to the construction of 
new sidepaths, with the approval of the commissioner of 
highways, or other officer performing similar duties, 
having jurisdiction, and repairing the same, to the main¬ 
taining of order upon such sidepaths, and to the enforce¬ 
ment of such necessary rules for the use thereof as may be, 
from time to time, adopted by such board of sidepath com¬ 
missioners. 

§ 5. Any person riding a bicycle upon any sidepath 
now existing or hereafter constructed in the county of 
Monroe in violation of section two shall be guilty of a mis¬ 
demeanor. 

§ 6. The location of the sidepaths heretofore constructed 
in the county of Monroe is hereby ratified and confirmed, 
and any person wilfully obstructing, injuring or destroy- 




The Highway Law of New York. 


353 


Laws 1898, chapter 102. 


ing any portion thereof, or any portion of a sidepath here¬ 
after constructed hereunder shall be guilty of a misde¬ 
meanor. 

§ 7. This act shall take effect immediately. 


LAWS 1898, CHAPTER 102. 

AN ACT in relation to the Newburgh and Cocheton turn¬ 
pike road. 

Section 1 . The board of directors of the Newburgh and 
Cocheton Turnpike Road Company, are hereby authorized 
to abandon, surrender and discontinue their turnpike, from 
the westerly line of the city of Newburgh, in the county of 
Orange, to the bridge over the Wallkill river, in the town 
of Montgomery, in said county, which surrender shall be 
by a resolution of said board, certified to and acknowledged 
by its president and secretary, which resolution shall be 
filed and recorded in the clerk’s office of the county of 
Orange. Upon the filing and recording of such resolution, 
the rights of such turnpike company in and to the turn¬ 
pike so abandoned and discontinued shall revert to and 
belong to the several towns and villages through which 
such road shall pass, and it shall be the duty of the several 
towns and villages acquiring said rights under this act, to 
immediately lay out and declare the same a free, public 
highway, and thereafter such road or turnpike shall be 
maintained and worked in the same manner as the other 
roads of such town and village are maintained and worked. 


2. This act shall take effect immediately. 
23 







354 


The Highway Law of New York. 


Laws 1898, chapter 115. 


GOOD ROADS LAW. 

LAWS 1898, CHAPTER 115. 

AN ACT to provide for the improvement of the public 
highways. 

Section 1 . The board of supervisors in any county of 
the state may, and upon presentation of a petition as pro¬ 
vided in section two hereof, must pass a resolution that 
public interest demands the improvement of any public 
highway or section thereof situate within such county, 
and described in such resolution, but such description shall 
not include any portion of a highway within the 
boundaries of any city or incorporated village, and within 
ten days after the passage of such a resolution shall trans¬ 
mit a certified copy thereof to the state engineer and sur¬ 
veyor. 

§ 2. The owners of a majority of the lineal feet fronting 
on any such public highway or section thereof in any 
county of the state may present to the board of supervisors 
of such county a petition setting forth that the petitioners 
are such owners and that they desire that such highway 
or section thereof be improved under the provisions of 
this act. 

§ 3. Such state engineer upon receipt of such a resolu¬ 
tion shall investigate and determine whether the highway 
or section thereof sought to be improved is of sufficient 
public importance to come within the purposes of this act, 
taking into account the use, location and value of such 




The Highway Law of New York. 


355 


Laws 1898, chapter 115. 


highway or section thereof for the purposes of common 
traffic and travel, and after such investigation shall certify 
his approval or disapproval of such resolution. If he 
shall disapprove such resolution, he shall certify his 
reasons therefor to such board of supervisors. 

§ 4. If he shall approve such resolution, such state 
engineer shall cause the highway or section thereof therein 
described to be mapped out both in outline and profile. 
He shall indicate how much of such highway or section 
thereof may be improved by deviation from the existing 
lines whenever :it shall be deemed of advantage to obtain 
a shorter or more direct road without lessening its useful¬ 
ness or wherever such deviation is of advantage by reason 
of lessened gradients. He shall also cause plans and 
specifications of such highway or section thereof to be thus 
improved to be made for telford, macadam or gravel road¬ 
way or other suitable construction, taking into considera¬ 
tion climate, soil and materials to be had in the vicinity 
thereof and the extent and nature of the traffic likely to 
be upon such highway, specifying in his judgment the 
kind of road a wise economy demands. The improved or 
permanent roadway of all highways so improved shall 
not be less than eight feet nor more than sixteen feet in 
width unless for special reasons to be stated by such state 
engineer it is required that it shall be of greater width. 
He shall if requested by the resolution include provision 
for steel plate or other flat rail construction in double 
track. 

§ 5. Upon the completion of such maps, plans and specifi¬ 
cations such state engineer shall cause an estimate to be 
made of the cost of construction of the same and transmit 
the same to the board of supervisors from which such reso¬ 
lution proceeded, together with a certified copy of such 






356 


The Highway Law of New York. 


Laws 1898, chapter 115. 


maps, plans and specifications, and of his certificate of the 
approval of the highway or section thereof so designated 
as aforesaid. 

§ 6. After the receipt thereof upon a majority vote of 
such board of supervisors, it may adopt a resolution that 
such highway or section thereof so approved shall be con¬ 
structed under the provisions of this act, or of any existing 
act, and thereupon shall transmit a certified copy of such 
resolution to such state engineer. 

§ 7. In case the boundaries of such proposed highway 
shall deviate from the existing highway, the board of 
supervisors must make provision for securing the requisite 
right of way prior to the actual commencement of the 
work of improvement. 

§ 8. Upon receipt of the certified copy of the resolution 
provided in section six, such state engineer shall advertise 
for bids for two successive weeks in a newspaper published 
at the county seat of such county, and in such other news¬ 
paper as shall be deemed of advantage for the construction 
of such highway or section thereof, according to such 
plans and specifications, and award such contract to 
the lowest responsible bidder, except that he may 
in his discretion award the contract to the board of 
supervisors of the county or the town board or boards 
of the town or towns in which such highway lies 
and except that no contract shall be awarded at a 
greater sum than the estimate provided in section five. 
But if no bid otherwise acceptable be made within such 
estimate, such state engineer may amend his estimate, 
certify the same to the board of supervisors, and upon the 
adoption by it of a resolution as provided in section six 
based on such amended estimate, proceed anew to obtain 








The Highway Law of New York. 


357 


Laws 1898, chapter 115. 


bids and award the contract as herein provided. Such 
engineer may reject any or all bids, and before entering 
into any contract for such construction, he shall require a 
bond with sufficient sureties, conditioned that if the pro¬ 
posal shall be accepted the party thereto will perform the 
work upon the terms proposed and within the time pre¬ 
scribed and in accordance with the plans and specifica¬ 
tions; and as a bond of indemnity against any direct or 
indirect damages that shall be suffered or claimed during 
the construction of such road and until the same is 
accepted. The people of the state of New York shall in 
no case be liable for any damages suffered. Partial pay¬ 
ments may be provided for in the contracts and paid in the 
manner herein provided when certified to by such state 
engineer to an amount not to exceed seventy-five per cen¬ 
tum of the value of the work done; twenty-five per cen¬ 
tum of the contract price shall be retained until the entire 
work has been accepted. Whenever a county engineer 
has been appointed in the county in which such highway 
or section thereof is to be constructed, he shall have gen¬ 
eral charge and supervision of the work under the direc¬ 
tion of such state engineer and shall report to him from 
time to time the progress of the work and such facts in 
relation thereto as may be required. If there is no county 
engineer, such state engineer shall have some competent 
person to superintend and have engineering supervision of 
the work. 

§ 9. One-half of the expense of the construction thereof 
shall be paid by the state treasurer upon the warrant of 
the comptroller, issued upon the requisition of such 
engineer, out of any specific appropriations made to carry 
out the provisions of this act. And one-half of the expense 
thereof shall be a county charge in the first instance, and 
the same shall be paid by the county treasurer of the 




358 


The Highway Law of Hew Yokk. 


Laws 1898, chapter 115. 


county in which such highway or section thereof is, upon 
the requisition of such engineer, but the amount so paid 
shall be apportioned by the board of supervisors, so that 
if the same has been built upon a resolution of said board 
without petition, thirty-five per centum of the cost of con¬ 
struction shall be a general county charge; and fifteen per 
centum shall be a charge upon the town in which the 
improved highway or section thereof is located, and if the 
same has been built upon a resolution of said board after 
petition as provided in section two, thirty-five per centum 
shall be a general county charge and fifteen per centum 
shall be assessed upon and paid by the owners of the lands 
benefited in the proportion of the benefits accruing to said 
owners as determined by the town assessors in the next 
section hereof. 

§ 10. The town assessors of any town in which any high¬ 
way or section thereof has been improved or constructed 
pursuant to petition as provided in section two of this act, 
shall have power and it shall be their duty upon receiving 
notice from the board of supervisors of the county in which 
said town is located, of the cost of construction or improve¬ 
ment of such highway or section thereof in such town, to 
assess an amount equal to fifteen per centum of said total 
cost upon the lands fronting or abutting on such highway 
or section thereof. Such assessment shall be apportioned 
according to the benefits accruing to the owners of the 
lands so located, according to the best judgment of said 
assessors, and the assessments so made when duly attested 
by the oaths of such assessors shall be collected in the same 
manner as the general taxes of such town are collected. 

§ 11. The construction and improvement of highways 
and sections thereof, under the provisions of this act, shall 
be taken up and carried forward in the order in which 




The Highway Law of Hew York. 


359 


Laws 1898, chapter 115. 


they are finally designated, as determined by the date of 
the receipt in each case of the certified copy of the resolu¬ 
tion provided in section six by such engineer as herein¬ 
before provided. 

§ 12. Upon the completion of such highways or sections 
thereof, so constructed by such engineer, and his accept¬ 
ance of the same, and after payment has been made, as 
herein provided, such engineer shall inform the board of 
supervisors of such county that the highways or sections 
thereof designated have been constructed as herein pro¬ 
vided, and his duties in regard to the same are finished; 
and he may serve notice on said board to accept such high¬ 
way thus constructed, which notice shall be filed in the 
office of the clerk of said county; and twenty days after the 
service and filing of said notice, such highway or section 
thereof shall be deemed accepted by said board of super¬ 
visors of such county; and thereafter they shall maintain 
the same as a county road, and apportion the expense as 
they may be empowered by law. 

§ 13. All persons owning property abutting on such road 
so improved, or residing thereon, shall thereafter pay all 
highway taxes assessed against them in money, in the 
manner now provided by law. 

§ 14. Whenever any county has had aid in building any 
such highway, and it seems advantageous to such state 
engineer that a section or sections of highway, not exceed¬ 
ing one mile in length, should be constructed under this 
act to connect these roads together, and would be of great 
public utility and general convenience, he may serve notice 
on the board of supervisors of such county, and shall file 
one in the county clerk's office, designating the highways 
already constructed and the existing terminal, and the 




360 


The Highway Law of New York. 


Laws 1898, chapter 115. 


section or sections, in his opinion, necessary to be con¬ 
structed and his reasons therefor. And it shall be the 
duty of the board of supervisors to provide for the con¬ 
struction of such connecting highway or section thereof, 
within one year after the service and filing of such notice 
under this act. 

§ 15. In addition to his other powers and duties, the 
state engineer and surveyor shall compile statistics relative 
to the public highways throughout the state, and shall 
collect all information in regard thereto deemed exped 
ient. He shall investigate and determine upon various 
methods of road construction adapted to different sections 
of the state, and as to the best methods of construction 
and maintenance of roads and bridges, and such other 
information relating thereto as he shall deem appropriate. 
He may be consulted at all reasonable times by county, 
city, town or village officers having care and authority 
over highways and bridges, and shall advise such officers 
relative to the contruction, repair, alteration, or mainten¬ 
ance of the same; and shall furnish such other informa¬ 
tion and advice as may be requested by persons interested 
in the construction and maintenance of public highways, 
and shall, at all times, lend his aid in promoting highway 
improvement throughout the state. He shall hold in each 
year at least one public meeting in each county, and shall 
cause due notice of such meeting to be given. He shall 
co-operate with all highway officers and shall assist county 
and town authorities, and when requested by them, fur¬ 
nish them with plans and directions for the improvement 
of the public highways and bridges. 

§ 16. He shall report annually to the legislature con¬ 
cerning all the work performed by him, together with 
such recommendations upon the subject of highway con- 





The Highway Law of Hew York. 


361 


Laws 1898, chapter 138. 


strnction and maintenance as to him shall seem appro¬ 
priate. 

§ 17. The commissioners of highways and town board 
of any town, and the board of supervisors of any county, 
and all other officers who now have or may hereafter have 
by law the care and supervision of the public highways 
and bridges shall, from time to time, upon his written 
request furnish him with all available information in con¬ 
nection with the building and maintenance of the public 
highways and bridges in their respective localities. 

§ 18. The operation of this act shall not be affected by 
any special act, but the highways may be improved under 
this act or such special act wherever the same may now 
exist. 

§ 19. This act shall take effect immediately. 


LAWS 1898, CHAPTER 133. 

AN ACT to provide for the employment of convicts on the 
highivays in Clinton county. 

Section 1. The superintendent of state prisons is 
hereby authorized to employ not to exceed two hundred 
convicts confined in Clinton prison in the improvement of 
the highways between said Clinton prison and the village 
of Saranac, in the town of Saranac, in the county of 
Clinton. The sum of five thousand dollars, or so much 
thereof as may be necessary, is hereby appropriated out 
of any moneys in the treasury not otherwise appropriated 
for team hire, officers’ salaries, tools, equipment and 





362 


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Laws 1898, chapter 224. 


other incidental expenses necessarily required to carry out 
the provisions of this act. The sum hereby appropriated 
shall be payable by the treasurer, upon the warrant of the 
comptroller, to be expended under the direction of the 
superintendent of state prisons. 

§ 2. This act shall take effect immediately. 


LAWS 1898, CHAPTER 224. 

AN ACT to authorize the supervisors of Albany county to 
appoint sidepath commissioners ivith power to regulate the use 
of bicycles within such county , to license the use of the same , 
and to expend the funds raised thereby in the construction 
and maintenance of sidepaths for bicycles. 

Section 1. The board of supervisors of Albany county 
shall, at its next meeting after this bill becomes a law, 
appoint from the resident citizens of such county, seven 
persons, each of whom shall be a cyclist and the owner of 
one or more bicycles, four of whom shall be residents of 
the city of Albany, one a resident of the city of Cohoes, 
one a resident of the city of Watervliet, and one a resident 
of one of the towns of said county, who shall constitute a 
board of sidepath commissioners for such county. Said 
commissioners shall serve without compensation, except 
their actual and necessary disbursements in the perform¬ 
ance of their duties, bills for the same to be audited by the 
board of supervisors and paid out of the sidepath fund. 
The commissioners so chosen shall take office immediately 
upon filing their written acceptance of the same with the 
clerk of the board of supervisors, and in case any person 






The Highway Law of New York. 


363 


Laws 1898, chapter 224. 


so appointed fails to file such acceptance within ten days 
after his appointment, the board of sidepatli commis¬ 
sioners may declare the place vacant by a majority vote, 
and such vacancy shall be filled as hereinafter provided for. 
The first board of commissioners shall draw lots to fix 
their respective terms of office, so that two shall serve for 
one year, two for two years and three for three years, 
from the first of January subsequent to their appointment, 
and thereafter the said board of supervisors shall each 
year, at their meeting previous to the first of January, 
appoint for a term of three years, commissioners to take 
the place of those whose terms are about to expire. The 
county judge shall appoint seven persons to act as such 
commissioners until the board of supervisors shall appoint 
the first board of sidepath commissioners. The board of 
sidepath commissioners shall have power to fill any 
vacancy on the board occurring by death, resignation or 
otherwise, and the person so chosen shall hold office until 
such time as the board of supervisors shall select a com¬ 
missioner to fill out the unexpired term. If any member 
of the board shall fail to attend three consecutive meet¬ 
ings, his place may be declared vacant by a majority vote 
of the board and the vacancy filled as provided above. 

§ 2. Such board of sidepath commissioners is hereby 
authorized and empowered to construct sidepaths along 
any public road of said county outside the limits of incor¬ 
porated cities and villages; provided that no sidepath shall 
be constructed upon or along any regularly constructed 
sidewalk or between such sidewalk and the highway 
except by and with the consent of the owners of the abut¬ 
ting lands. Such paths shall not be less than three feet 
nor more than six feet wide, without the consent of the 
abutting owners, and shall be constructed within the out- 
side lines and along and upon either side of such public 




364 


The Highway Law of New York. 


Laws 1898, chapter 224. 


roads as the board of sidepath commissioners shall deter¬ 
mine. The board of sidepath commissioners is also 
authorized and empowered to lay out, construct and 
repair sidepaths along the public streets of such county, 
by and with the consent of the officers having jurisdiction 
over the same. 

§ 3. Such board of sidepath commissioners shall, upon 
entering upon its duties, and in each calendar year there¬ 
after, determine upon a form of license to consist of a 
suitable inscription or devise to be affixed or attached to a 
bicycle, and shall upon payment of a fee, to be determined 
by such commissioners, of not Jess than fifty cents nor 
more than one dollar, cause the same to be affixed or 
attached in some prominent place upon each bicycle pre¬ 
sented for such purpose. Each such license shall be good 
during the calendar year in which it is so attached or 
affixed to a bicycle and no longer. The sidepaths now 
and hereafter constructed in said county are hereby 
declared to be for the exclusive use of bicycle riders and 
pedestrians; but bicycle riders shall have the right of way 
thereon and no resident of Albany county shall ride a 
bicycle thereon unless there shall appear upon such 
bicycle a valid license, issued a3 above provided. 

§ 4. The license fees collected by the said board of side- 
path commissioners shall be deposited on or before the 
first day of each month with the county treasurer, by 
whom they shall be credited to a special fund, to be called 
‘‘the sidepath fund” upon which the board of sidepath 
commissioners is authorized to draw warrants, signed by 
a majority of such board but no warrant shall be so drawn 
in excess of the amount actually on deposit, nor shall any 
contract or purchase be made exceeding the amount of 
such fund at the time of making such contract or pur- 






The Highway Law of New York. 


365 


Laws 1898, chapter 224. 


chase. All warrants or orders so issued against such fund 
shall be accompanied by vouchers for the work performed 
or purchases made, duly audited by a majority of said 
board of sidepath commissioners, and such warrant or 
order with the vouchers thereto attached shall be suffi¬ 
cient warrant to the said county treasurer to pay the 
same. 

§ 5. The said board of sidepath commissioners shall 
devote the moneys so collected to the repairing of existing 
sidepaths in the county of Albany, to the construction of 
new sidepaths, and to the maintaining of order upon the 
same, and the enforcement of such necessary rules for the 
use thereof as may be from time to time adopted by the 
said board of sidepath commissioners. 

§ 6. Any resident of Albany county riding a bicycle 
upon any sidepath now existing or hereafter constructed 
in the county of Albany in violation of section three, shall 
be guilty of a misdemeanor, and shall upon conviction, be 
punishable by a fine of five dollars. 

§ 7. The location of the sidepaths heretofore constructed 
in the county of Albany is hereby ratified and confirmed, 
and any person wilfully obstructing, injuring or destroying 
any portion thereof, or any portion of a sidepath here¬ 
after constructed, shall be guilty of a misdemeanor. 

§ 8. Said board of sidepath commissioners shall be 
authorized to adopt rules covering the speed, use of lamps 
and signals by cyclists using the paths in said county. 
Violation of rules so adopted shall constitute a misde¬ 
meanor and shall be punishable by a fine not exceeding 
five dollars. 




366 


The Highway Law of New York. 


Laws 1898, chapter 224. 


§ 9. The said board of sidepath commissioners shall 
have the power to appoint one or more persons in each 
city, village and town, to be known as sidepath police, 
who shall serve without compensation except for their act¬ 
ual disbursements, such bills to be audited and paid as 
provided in section four of this act, and who shall have 
power to make arrests for the violations of this act, and 
also for the violations of sections six hundred and fifty-two 
(relative to sidepaths) and six hundred and fifty-four-a 
(relative to deposits of certain substances on the public 
road) of the penal code. 

§ 10. All fines imposed and collected for violations of 
this act shall be paid over to the county treasurer by the 
officers collecting the same, within fifteen days after the 
same shall be collected, and shall be deposited by the 
county treasurer to the credit of the sidepath fund. 

§ 11. The said board of sidepath commissioners shall 
keep a book or books of record, containing the names and 
addresses of all persons to whom licenses shall be issued 
under the provisions of this act, and records of all pro¬ 
ceedings of said board. Said books shall be open to pub¬ 
lic inspection during customary business hours. 

§ 12. This act shall take effect immediately. 






The Highway Law of New York. 


367 


Laws 1898, chapter 277. 


LAWS 1898, CHAPTER 277. 

AN ACT to authorize the construction and maintenance of 
bicycle paths or wheelways within the limits of the highways 
in Columbia county. 

Section 1 . Any individual or individuals, corporation, 
association or bicycle club, residing or having an office in 
Columbia county, is hereby authorized and empowered, 
with the consent of any one of the commissioners of high¬ 
ways of the town, to construct bicycle paths or wheelways, 
not over eight feet in width, within the limits of any or all 
the highways, outside of the main traveled portion thereon, 
in any or all of the towns of Columbia county, and there¬ 
after to use and maintain the same. 

§ 2. All bridges, sluiceways, culverts, trestles, crossings 
and the path or wheelway itself shall be so constructed as 
to not interfere with that portion of the highway in use by 
teams and vehicles, except by the consent of the commis¬ 
sioner of highways of the respective towns in which the 
said path or wheelway is being constructed. 

§ 3. Any and all crossings of the highway shall be con¬ 
structed at grade therewith, and at all places where ingress 
and egress is had, to and from, the adjacent property, 
suitable crossings shall be constructed and maintained. 
The said paths or wheelways shall be constructed as nearly 
on a grade with the highways as the grade and conditions 
of the lands on the sides thereof will permit, without 
making unnecessary cuts and fills. 

§ 4. All portions of any said paths or wheelways which 
have already been constructed or which may hereafter be 
constructed, may be used for bicycle and tricycle riding 
and by pedestrians, and shall not be used for any other 








368 


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Laws 1898, chapter 277. 


purpose or purposes. And all portions of any said paths 
or wheelways which have already been constructed by or 
for the use of bicyclists, and which are now used as bicycle 
paths, or wheelways, are hereby legalized, ratified and 
confirmed, and shall have the same standing in law as 
paths hereafter constructed under the provisions of this 
act. 


§ 5. The placing or causing to be placed on any part of 
said paths or wheelways, of any iron, glass, earthenware 
or any other substance injurious to bicycle tires or liable 
to be injurious thereto, and the injuring or obstructing of 
any of the said paths or wheelways in any manner, and 
the leading, riding, or driving of any horse or horses or 
any other animal or animals on any of the said paths or 
wheelways and the drawing or placing of any wagon, 
buggy, cart, sleigh, cutter or any other conveyance on 
any portion of any of the said paths or wheelways, and 
the willful leading, driving or allowing of any animal to 
walk or run upon any of the said paths or wheelways, is 
hereby prohibited. 

§ 6. Nothing in this act shall be construed to prohibit 
the lawful crossing of the said paths or wheelways with 
any animal or animals or with any conveyance or convey¬ 
ances. 

§ 7. Any person who shall (willfully and maliciously) 
do or commit any of the acts hereinbefore prohibited, 
shall be guilty of a misdemeanor. 

§ 8. This act shall take effect immediately. 





FORMS. 



The Highway Law of New York. 


371 


Forms. 


FORMS. 


No. 1. 

Resignation of Highway Commissioners. 

To the Town Clerk (Justices of the Peace) of the Town of . 

in the County of. . N. Y.: 

I hereby tender my resignation of the office of commissioner of high¬ 
ways of said town, for the following reasons : . 

Dated this_day of.. 18... 


Notice of Acceptance of Resignation. 

COUNTY OF. ) 

[• ss.: 

Town of. ) 

To the Town Clerk of the Town of . 

You are hereby notified, pursuant to section 64 of the town law, that 
we, the undersigned, justices of the peace of said town, have, for good 
cause shown, accepted the resignation of... .as commissioner of highways 
of said town. 

Dated this_day of.. 18.... 


Justices of the Peace. 


No. 2. 

Appointment of Highway Commissioner to Fill Vacancy. 

COUNTY" OF. 

y 

Town of. 

Whereas, a vacancy has occurred in the office of commissioner of high¬ 
ways of said town ^by the resignation (or otherwise) of....; now therefore 





















372 


The Highway Law of New Yoke. 


Forms. 


we, the undersigned, town board of said town, do hereby, pursuant to 

section 65 of the town law, appoint_to fill the vacancy in said office. 

Witness our hands and seals this.day of.. 18_ 


Town^Board. 


Notice to Person Appointed. 

COUNTY OF. ) 

J-ss. : 

Town of. ) 

To _ Esq. : 

You are hereby notified, pursuant to section 65 of the town law, that 
you have been appointed commissioner of highways of said town of 

., to fill the vacancy caused by the resignation (or otherwise) of 

.and you are required to take the oath of office, and file your under¬ 
taking within ten days after receiving this notice, as directed by section 
51 of the town law. 

Dated this.day of., 18_ 


Town Clerk. 


JSTo. S. 

Undertaking of Highway Commissioner. 

Whereas, .of the town of., in the county of., 

was on the.day of.. 18 .., duly elected commissioner of 

highways ; now, therefore, we, the said.principal and.and. 

of the town of., his sureties, do hereby, pursuant to section 63 of 

the town law, jointly and severally undertake that the said_will faith¬ 

fully discharge his duties as such commissioner, and that he will within 
ten days after the expiration of his term of office, pay over to his successor 
all moneys remaining in his hands as such commissioner, and render to 































The Highway Law of New York. 


373 


Forms. 


such successor a true account of all moneys received and paid out by him 
as such commissioner. 

Dated this-day of.. 18.. 


STATE OF NEW YORK, ) 

County of. > ss. : 

Town of. i 


On this.day of., 18_, before me, the subscriber, per- 

sonally appeared.and.to me personally known to be the same 

persons mentioned in, and who executed the foregoing undertaking, and 
severally acknowledged that they executed the same. 


Notary Public. 


Justification of Sureties. 

STATE OF NEW YORK, ) 

>■ ss. : 

County of. ) 

_and__ the sureties mentioned in the foregoing undertaking, being 

severally duly sworn, each for himself says, that he is a resident and free¬ 
holder (or householder) within this State, and is worth.dollars 

over and above all debts and liabilities which he owes or has incurred, and 
exclusive of property exempt by law from levy and sale on execution. 


Subscribed and sworn to before me ,) 
this_day of., 18... j 

Notary Public. 


Approval by Supervisor. 

I hereby approve of the foregoing undertaking, and of the sufficiency 
of the sureties therein named. 


Supervisor of the Town of 























374 


The Highway Law of New York. 


Forms. 


jWo, 4. 

Undertaking of Treasurer of Highway Commissioners. 

{Highway Laic , § 2.) 

Whereas, the commissioners of highways of the town of., 

in the county of., have designated ., one of their number, 

to be treasurer, pursuant to section 2 of the highway law; now, therefore, 

we, the said., and., as his surety (or sureties), do 

hereby jointly and severally undertake to and with the said town 

that the said.will faithfully account and pay over to any officer or 

person, entitled thereto, any money that may come into his hands as such 
treasurer. 

Dated this..... .day of., 18.... 


STATE OF NEW YORK, 


> ss.: 

County of. ) 

On this.day of., 18-, before me personally appeared 

* 

the above-named.and., to me personally known to be the same 

person described in and who executed the foregoing undertaking, and 
they severally acknowledged that they executed the same. 


Notary Public. 


STATE OF NEW YORK, ) 

>ss.: 

County of. ) 

.and., above named, being duly and severally sworn, each for 

himself says that he is a resident of and a householder, or freeholder, 

within the state, and is worth.dollars over and above all debts 

and liabilities which he owes or has incurred, and exclusive of property 
exempt by law from levy and sale under execution. 


Subscribed and sworn to before me, 
this.day of_ ,18_ 


* 


Notary Public. 





























The Highway Law of New Yoke. 


375 


Forms. 


Approval by Supervisor. 

I approve of the foregoing undertaking, and of the sufficiency of the 
sureties therein named. 

Dated this.day of., 18- 

Supervisor of the Town of. 


No. 5. 

Division of Town into Highway Districts. 

(Highway Law, § 4.) 

The undersigned, commissioners of highways of the town of. 

in the county of.hereby divide the highways of said town into 

districts as follows: 

District No. 1 shall comprise (here insert the description thereof, and in 
like manner of all the other districts). 

And we hereby assign to each of said districts the inhabitants and cor¬ 
porations, respectively, residing or located or assessed for highway labor 
therein and liable to work on highways. 

Dated this.day of.,18- 


Commissioners of Highways. 


No. 0. 

Appointment of Overseers. 

(.Highway Law, § 4.) 

The undersigned, commissioners of highways of the town of., 

in the county of., do hereby appoint overseers of the highways of 

said town for the ensuing year, as follows: 

District No. 1.—. 

District No. 2.—. 

District No. 3.—. 

Dated this_day of.. 18... 


Commissioners of Highways. 


























376 


The Highway Law of New York. 


Forms. 


No. 7. 


Notice to Overseers of Appointment. 

{Highway Law , § 4.) 


COUNTY OF 


ss.: 


Town of. ) 

To . 

Please take notice that you have been appointed by the commissioner of 

highways, overseer in highway district No... in the town of.. 

county of., N. Y., for the ensuing year; and you are hereby 

required to report to the town clerk within sixteen days after receiving 
this notice, the names of all the taxable inhabitants and corporations in 
your highway district liable to be assessed for highway labor therein. 

Dated this_day of., 18- 


Town Clerk. 


No. 8. 

Consent of Town Board. 

{Highway Law , § 10.) 

COUNTY OF.) 

[• ss.: 

Town of.) 

At a special meeting of the town board of said town, called by the 

supervisor (or town clerk) thereof, held on this_day of., 18.., 

the following preamble and resolution was adopted : 

Whereas, The highway (or bridge), known as.. was 

destroyed by., on., 18. .,(or has become dam¬ 

aged), and there not being sufficient moneys in the hands of the commis¬ 
sioners of highways to rebuild (or repair) the same; therefore, be it 

Resolved , That we do hereby consent that the commissioners of highways 
of the town of.cause said highway (or bridge) to be imme¬ 

diately rebuilt (or repaired) according to law. 


Town Board. 























377 


The Highway Law of New York. 


Forms. 


Town Clerk’s Certificate to Transcript. 


COUNTY OF 


>• ss.: 

Town of. ) 

I do hereby certify that I have compared the above transcript of the 
proceedings of the town board of said town, at a special meeting held on 

the....day of.18.., with the original record thereof in my 

office, and that the same is a correct transcript therefrom, and of the 
whole of such original. 

Dated this.... day of.. 18.. 


Town Clerk. 


JVo. 9. 


Request to Convene Town Board. 

(Highway Law , § 11.) 

To the Supervisor (or Town Clerk) of the Town of .. in the 

County of .: 

The undersigned commissioners of highways of said town, do hereby 
request that the town board be convened in special session, for the pur¬ 
pose of auditing the bills and expenses incurred in the erection (or repair) 
of the highway (or bridge) under the consent given by said board on the 

... .day of.. 18.. 

Dated this_day of.. 18.. 


Commissioners of Highways. 

Certificate of Supervisor and Town Clerk. 

COUNTY. ) 

V ss.: 

Town of. ) 

The undersigned, supervisor and town clerk of said town, do hereby 
certify that at a special session of the town board this day held, for the pur¬ 
pose of auditing and allowing the bills and expenses incurred by the com¬ 
missioners of highways of said town, under the consent given b\ said 

















378 


The Highway Law of New York, 


Forms. 


town board, on the-day., 18...the following bills and 

accounts were audited and allowed, with interest: 


Date. 

In whose favor. 

Nature of work done and 
material furnished. 

Amount 

allowed. 






Dated this... .day of 


18.... 


Supervisor. 


Town Clerk. 


JS T o. 10. 


Accounts fox* Services and Materials. 

(.Highway Law , § 12.) 

The Town of., to., Dr. 

January, 18.., to.(days’ labor on).. 

January, 18.., to.(feet of plank) . 

Total.... 


8 


8 


COUNTY OF 


V ss.: 

Town of. ) 

.,being duly sworn, says he is the claimant in the above account, and 

that the items of said account are correct, and that the disbursements and 
services charged therein have been in fact made or rendered, and goods 
supplied, and that no part of the same has been satisfied. 


Subscribed and sworn to before me, j 
this.day of. ,18.. \ 


Notary Public. 

































379 


The Highway Law of New YoPwK. 

\ 

Forms. 


COUNTY OF.) 

>■ ss.: 

Town of. ) 

v^The undersigned, commissioners of highways of said town, do hereby 

certify that in the foregoing account of., the services mentioned 

were actually performed, and the material mentioned was actually fur¬ 
nished, and the same was so performed and furnished at our request. 
Dated this.day of .,18- 


Commissioners of Highways. 


No. 11. 

Complaint about Unsafe Toll-bridge. 

(.Highway Law, § 13.) 

COUNTY OF.) 

>- ss.: 

Town of. ; 

. . being duly sworn, says that he believes the toll-bridge belong¬ 
ing to.situated on the.at. 

has become and is unsafe for public use and travel; and that the 
reasons for his belief are founded on the following facts: . 

Subscribed and sworn to before me, ) 
this.day of. ,18.. ) 

Notary Public 


No. 12. 

Notice to Owners of Unsafe Toll-bridge. 

(Highway Law , § 13.) 

To . 

You are hereby notified that the commissioners of highways of the 

town of., in the county of.. have, on complaint 





























380 


The Highway Law of New York. 


Forms 


made, carefully and thoroughly examined the toll-bridge situated on the 

.at.and found it to be unsafe for 

public use and travel in the following particulars: . 

Dated this.day of. 18.... 


Commissioners of Highways. 


No. 13. 

Application to Lay Water-pipes in Highway. 

{Highway Law , § 14.) 

To the Commissioners of Highways of the Town of . 

County of . 

The undersigned, an inhabitant of the said town of. 

does hereby make application to you for permission to lay and maintain 
water-pipes and hydrants under ground, within the highways of said 
town, pursuant to section 14 of the highway law, as follows:. 


Dated this.day of., 18- 


No. 14. 

Permission to Lay Water-pipes in Highway. 

{Highway Law, § 14.) 

The undersigned, commissioners of highways of the town of., 

in the county of.. on the written application of., do 

hereby grant permission to the said.to lay and maintain water-pipes 

and hydrants under ground within the highways of said town, as follows: 

. But such pipes are not to 

be laid under the traveled portion of the highway, except to cross the 
same for the purpose of supplying premises with water; and this permission 
is upon condition that such pipes shall be so laid as not to interrupt or 




























381 


The Highway Law of New York. 


Forms. 


interfere with public travel upon the highway, and that’the applicant 
shall replace all earth removed, and leave the highway in all respects in as 
good condition as before the laying of such pipes. 

Dated this .... day of., 18.... 


Commissioners of Highways. 


No. 15. 

Claim for Damages Against Town. 

(Highway Law, § 16.) 

To .. Supervisor of the Town of ., in the County of .: 

I claim a cause of action against the said town of., by reason 

of defects in the highway (or bridge) in said town, and the following is a 

statement of such cause of action: .. 

Dated this .... day of.18..... 


STATE OF NEW YORK, ) 

[■ ss.: 

County of. ) 

.. being duly sworn, deposes and says that he is the above 

named claimant; that he has read the foregoing statement and knows the 
contents thereof; that the same is true to his own knowledge, except as to 
the matters therein stated to be alleged upon information and belief, and 
as to those matters he believes it to be true. 

Sworn to before me, this.... 

day of.. 189.. 



Notary Public. 























382 


The Highway Law of New York. 


Forms. 


JSTo. 16. 

Report of Highway Commissioners. 

(.Highway Law , § 19.) 

At First Meeting of Town Board. 

The undersigned, commissioners of highways of the town of.. 

in the county of.. hereby render to the town board of said 

town, the following report: 

1. The highway labor assessed in said town for the year ending on., 

18..., was_days; and the highway labor performed in said town during 

the said year was.... days, as appears by the accounts rendered us by the 
several overseers of the highways in said town. 

2. The said commissioners have received during the said year the fol¬ 
lowing sums of money for fines and commutations, and from other 
sources: 

Date. | from whom received. | On what account. | Amount. 

i 

3. They have paid out during the said year, for which they have receipts 
in full, the following sums: 

Date. | to whom paid. | On what account. | Amount. 


4. The improvements which have been made on the highways and 

bridges in said town during said year are as follows: . 

And the highways and bridges in said town are as to condition as follows: 


Dated this ... day of February, 18... 




Commissioners of highways. 

At Second Meeting of Town Board. 

The undersigned, commissioners of highways of the town of., 

in the county of.. hereby render to the town board of said 

town the following report: 























383 


The Highway Law of New York. 

i 

Forms. 


1. The following improvements are necessary to be made on the high¬ 
ways and bridges in said town during the next fiscal year, viz.: . 


2. The probable expense of making such improvements beyond what the 

labor to be assessed will accomplish, is by us estimated at $. 

Dated this ... day of November, 18.... 


Commissioners of Highways. 


Wo. 17. 


Notice to Remove Obstructions. 

{Highway Laic, § 21.) 

To... , Overseer of Highway District No _, of the Town of . 

in the County of .: 

We, the undersigned inhabitants of said town, liable to payment of 
highway tax, hereby give notice that the highway in said district is 
obstructed by.at.and request that 

you forthwith proceed to remove said obstruction. 

% 

Dated this... .day of.18 ... 


Wo. 18. 

Lists of Inhabitants. 

(Highway Law, § 31.) 

I,., overseer of highway district No__ of the town of.. 

.do hereby certify that the following is a true and correct list of 

all the inhabitants and corporations who are liable to work on the high¬ 
ways in said district. 


NAMES. 

NAMES. 

Dated this... .day of.. 

18.... 


Overseer of Highway District No.... 






























384 


The Highway Law of New York. 


Forms. 


No. 19. 

List of Non-Resident Lands. 

{Highway Law, § 32.) 

The following is a list and statement of the contents of all lots, pieces 

or parcels of land within the town of., in the county of. 

., owned by non-residents therein, made by the undersigned, com¬ 
missioners of highways of said town : 


NAME OF TRACT 

Number 

lot. 

Part. 

Number 

section. 

Township. 

Number 

range 

. . 

Number 

acres. 

Valua¬ 

tion. 










Dated this... .day of., 18- 


Commissioners of Highways. 


No. 20. 


Road Warrant. 

{Highway Law, § 33.) 

To ., Overseer of Highways in District No ., of the Town 

of .. hounded as follows . 


You will cause the several persons and corporations whose names are 
hereunto annexed, to labor on the highways in your district the number 
of days set opposite their names, or commute therefor at the rate of one 
dollar for each day; two-thirds to be performed by the first day of 

.next, and the residue by the first day of. 

.next. You are also required to cause all noxious weeds 

on the highways in your district to be cut down between the fifteenth day 
of June and first day of July, and again between the fifteenth day of 
August and first day of September; and also to cause the loose stones 








































The Highway Law of New York. 


385 


Forms. 


lying on the beaten track of the road to be removed at least once in each 
month from the first day of April to the first day of December. Should 
any name in your district be omitted, or new inhabitants move in, you 
are to annex their names, and to assess them in proportion to their real 
and personal estate. And whenever the labor in your ward or district has 
been worked out, commuted for, or returned to the supervisor, and the 
highways are obstructed by snow, or otherwise, and written notice has 
been given to you by any two or more inhabitants of the town liable to 
the payment of highway tax, requesting the removal of such obstruction, 
you are required to immediately call upon all persons liable to highway 
tax in your district to assist in removing such obstructions, and such 
labor, so called for by you, shall be assessed upon those liable to perform 
the same, in proportion to their original assessments. Also, to 
deliver to the supervisor of said town, on or before the first day 
of October next, a list of all resident landholders residing in your dis¬ 
trict, who have not worked out their highway assessment or commuted 
for the same, and a list of all the lands of non-residents, and of persons 
unknown, which are taxed on your list, on which the labor assessed by 
the commissioners or added by you, according to law, has not been per¬ 
formed or commuted for, and the number of days unpaid for by each, 
charging for the same at the rate of one dollar and fifty cents per day, 
which list shall be accompanied by your affidavit, duly certified, that you 
have given the notice required by sections 60 and 61 of the highway law, 
and that the labor for which such residents and such land is returned 
has not been performed or commuted. You are to make return to orie of 
the commissioners of highways on the second Tuesday next preceding the 
annual town meeting m your town , within the year for which you are 
appointed , verified by your oath containing: First. The names of all per¬ 
sons assessed to work on the highways in the district of which you are 
overseer. Second. The names of all those who have actually worked on 
the highways with the number of days they have so worked. Third. 
The names of all those who have been fined, and the sums in which they 
have been fined. Fourth. The names of all those who have commuted, 
and the manner in which the moneyes arising from fines and commuta¬ 
tions have been expended by you. Fifth. A list of all persons whose 
names you have returned to the supervisor as having neglected or refused 
to work out their highway assessments, with the number of days and 

25 


i 




386 


The Highway Law of New York. 


Forms. 


amount of tax so returned for each person, and a list of all lands which 
you have returned to the supervisor for non-payment of taxes, and the 
amount of tax on each tract of land so returned — according to the stat¬ 
ute in such case made and provided. And you are to pay over to said 
commissioners according to law, all moneys payed to you for commute 
tion by. all moneyed or stock corporations hereby assessed upon it or them 
for highway labor, and all moneys remaining in your hands, arising from 
flees and commutations. The law imposes a penalty of ten dollars on the 
overseers for neglect or refusal to make such return, or to pay over said 
moneys, which fine the commissioners are bound to enforce in every case 
of default. 

Dated this .. .day of.,18 


Commissioners of Highways. 


NAMES. 

Days 

Days 

Days 

Amount 


assessed. 

worked. 

commuted. 

of fines. 







No. 21. 


Appeal by Non-resident, 

(Highway Law , § 36.) 


COUNTY OF 


> ss.: 

Town of. ) 

., a non-resident owner of lands in said town, considering (or. 

agent of.. a non-resident owner of lands in said town, who considers) 

himself aggrieved in the assessment for highway labor by the commis¬ 
sioners of highways of said town, upon the following described lands, to 

. does 

hereby appeal from the assessment of said commisssoners to the county 
judge of said county. 

Dated this.day of 


,18... 


























The Highway Law of New York. 


387 


Forms. 


Notice to Commissioners. 

To... .., ..., commissioners of highways of the town of 

.You are hereby notified, that considering myself aggrieved 

by your assessment for highway labor on the land owned by me in said 
town, I have this day appealed to the county judge of the county of 

.. who will on the.day of.. at_o’clock, in 

the.noon at.. in the village of.hear and decide on 

said appeal. 

Dated this.day of.. 18- 


J\o. 22. 

New Assessment by Overseers. 

(Highway Law, § 42.) 

The amount of labor assessed on the inhabitants of highway district No. 
town of., being deemed by me, the undersigned over¬ 

seer of highways in said district, insufficient to keep the highways therein 
in repair, I do therefore, pursuant to section 42 of the highway law, make 
a further assessment as follows: 

_ Names. 1 Days. | Names. | Days. _ 

Dated this.day of.. 18- 

Overseer of Highways, District No.... 


JS T o. 23. 


Order Authorizing Planting of Shade Trees, or 

of Sidewalks. 

{Highway.Law, § 43.) 


Construction 


COUNTY OF. 

V ss.: 

Town of. ; 

We, the undersigned commissioners of highways of said town, do hereby 
authorize.. at his own expense, to locate and plant trees and locate 































388 The Highway Law of New York. 


Forms. 


and construct sidewalks along [the highway* adjoining his premises, in 

highway district No.in said town, according to a map or diagram 

hereto attached and made a part of this order. 

Dated this.day of.. 18_ 

. 

. 


Commissioners of Highways. 




No. 24. 


Application to Anticipate Sidewalk Tax. 

(Highway Law, § 45.) 

To the Commissioners of Highways of the Town of . . in the 

County of .: 

We, the undersigned, a majority of the inhabitants of highway district 

No-in said town of., subject to assessment for highway labor 

therein, hereby make application to you for authority to anticipate and 

expend.of the highway labor or commutation 

money of said district in the construction, improvement and repair of the 

sidewalks in said district for the term of.years, pur¬ 

suant to section 45 of the highway law. 

Dated this_day of., 18_ 








Order of Commissioners. 

COUNTY OF. \ 

Town of. ) * 

We, the undersigned commissioners of highways of said town, hereby 
authorize the overseer of highway district No...., in said town, to antici¬ 
pate and expend.of the highway labor or 

commutation money received therefor, in said district, for the term of 
.years, in the construction, improvement and repair 



























The Highway Law of New York. 


389 


Forms. 


of the sidewalk within the limits of said district, pursuant to sections 45 
and 46 of the highway law. 

Dated this_day of.. 18- 


Commissioners of Highways. 


No. 25. 


Certificate of Anticipation. 

(Highway Law , § 46.) 


COUNTY OF 


V ss.: 

Town of. ) 

I, the undersigned, overseer of highway district No.,in the said 

town of., hereby certify that_has anticipated and worked 

(or commuted for).days, constructing, improving and repairing the 

sidewalk within the limits of said district, pursuant to section 45 of the 
highway law. 

Dated this_day of. 18... 


Overseer of Highways, District No.... 


No. 20. 

Transfer of Certificate. 

(Highway Law , § 47.) 

For value received, I hereby assign and transfer all my right and inter¬ 
est in and to the within certificate of anticipation to...., grantee of the 
real property upon which such highway labor is assessable. 

Dated this_day of. 18... 
















390 


The Highway Law of New York. 


Forms. 


No. 27. 


Request to Change System. 

(.Highway Law, § 51.) 

To ., Town Clerk of the Town of ., in the County 

of . 

We, the undersigned, taxpayers of said town of. ..., 

hereby request that a vote by ballot be taken at the next annual town 
meeting in said town by the electors thereof entitled to vote thereon, on 
the question of changing the system of taxation for working the high¬ 
ways in said town, pursuant to sections 50, 51, 52 and 58 of the highway 
law. 

Dated this.day of.18_ 


No. 28. 

Notice to Corporation.*! 

{Highway Law, § 60.) 

To ., a Corporation {or . Agent of .): 

Take notice that you (or .) are assessed.day’s labor in high" 

way district No.in the town of., county of., 

and that said labor is required to be performed on the highway at 

.in said district on the.... day of. next, and the days 

following, and you are required to furnish.and 

to perform.day’s labor in a day, and will be allowed one day for every 

eight hours of work on said highway between 7 o’clock in the A. M. and 6 
o’clock in the P. m. 

Dated this-day of.., 18_ 


Overseer of Highway District No.... 





























The Highway Law of New York. 


391 


Forms. 


No. 20. 

Notice to Non-£&esidents. 

(Highway Law , $ 01.) 

. Agent of ., a Non-resident Owner of Lands in the Town 

of .. in the County of . 

Take notice that., a non-resident of the said town, is assessed. 

days labor in highway district No., in said town, and that said labor 

is required to be performed on the highway at.in said district 

on the-day of.next, and the days following. 

Dated this ... day of., 18_ 


Overseer of Highway District No.... 

Notice for Filing. 

Notice is hereby given that the highway labor assessed on the following 

described parcels of land in the town of., county of., 

owned by non-residents, is required to be performed from the .... day of 

.to the_day of.next, in highway district No_, m 

said town, on the highway at. 


OWNERS’ names. 

Description of lands. 

Days assessed. 

Dated this... .day of. 

., 18_ 



Overseer of Highway District No.... 


No. 30. 

List of Unperformed Labor. 

(Highivay Law, § 66.) 

To the Supervisor of the Town of . in the County of .: 

The following is a list of all the resident landholders residing in highway 

district No_, in the said town of.. who have not worked out 

their highway assessments, or commuted for the same, with the number 
of days not worked or commuted for by each, at one dollar and fifty cents 
per day; and also a list of all the lands of non-residents and of persons 
































392 


The Highway Law of Hew York. 


Forms. 


unknown, which are assessed on my warrant by the commissioners of 
highways, or added by me according to law, on which the labor assessed 
has not been performed or commuted for, and the number of day’s labor 
unpaid by each, charging for each at the rate of one dollar and fifty cents 
per day: 


Owners’ Name. 

Description of land. 

Assessed 

value. 

Number 
of days 

Amount. 

Owners’ Name. 

List of Non-resii 

Description of land. 

>ent Land 

Assessed 

value. 

s. 

Number 
of days 

Amount. 







Overseer of Highway District No.... 


COUNTY OF 


Town of. i 

.. being duly sworn, says he is the overseer of highway district No 

., in the town of.in the county of., and that 

he has given the notices to appear and work, required by sections 60 and 
61 of the highway law, and that the labor for which such residents and 
such land is returned, has not been performed or commuted for. 


Subscribed and sworn to before ^ 
me, this_day of_ 18.. \ 


Overseer of Highway District No.... 


Notary Public. 


No. SI. 

Return of Overseer, 

{Highway Law, § 69.) 

To the Commissioners of Highways of the Town of ., in the 

County of .; 

The undersigned, overseer of highway district No., in said town, 


































The Highway Law of New York. 


393 


Forms. 


hereby renders the following account pursuant to section 69 of the high¬ 
way law: 

1. The names of all persons assessed to work on the highways in said 
district are as follows: 


___ Names. _(_ Days assessed. _ 

2. The names of all persons who have actually worked on the highways, 
with the number of days they have worked, are as follows: 

_ _ Names. _ | Days worked. 

3. The names of all those who have been fined, and the sums in which 
they have been fined, are as follows: 

. _ Names. _|_Amount. 

4. The names of those who have commuted, and the amount of the 
commutation, are as follows: 

Names. | Amount. 


5. The moneys arising from penalties and commutations have been 

expended as follows:. 

6. Names returned to the supervisor of persons who have neglected or 
refused to work out their highway assessments, with the number of days 
and amount of tax so returned, are as follows: 

Names. | Days assessed. | Amount of tax. 


7. The following is a list of lands returned to the supervisor for non¬ 
payment of taxes: 


Names of owners 

Description. 

Assessed 

value. 

Number 

days. 

Amount. 







Overseers of Highway District No.... 



































394 


The Highway Law of New York. 


Forms. 


COUNTY OF. 


Town of ' SS ” 

., being duly sworn, says lie is overseer of highway district No. 

., in the town of.. and that the foregoing account sub¬ 
scribed by him, is true to the best of his knowledge and belief. 


Overseer of Highway District No.... 
Subscribed and sworn to before me, 

this-day of.. 18_ 


Notary Public. 


JS T o. 32. 

Notice to Remove Weeds. 

(Highway Law , § 71.) 

To ., Occupant of . Abutting on the 

Highway in Highway District No ...., in the Town of .. 

County of ., N. Y.: 

The undersigned, overseer of highways of said district, hereby notifies 
and requires you to cut all weeds, briers and brush growing upon the 
above described lands within the bounds of said highway within ten days 
after the receipt of this notice; aud if you fail to do so, I shall cause the 
same to be cut and make a report thereof pursuant to section 71 of the 
highway law. 

Dated this.day of. .., 18.... 

Overseer of Highway District No.... 


JVo. 33. 

Report of Overseers as to Weeds. 

(Highivay Law, § 71.) 

To the Commissioners of Highways of the Town of . 

County of .: 

The undersigned, overseer of highway district No.... 


, in said town, 




























395 


The Highway Law of New York. 


Forms. 


in accordance with section 71 of the highway law, hereby renders the fol¬ 
lowing report: 

The amount of money expended by me for cutting weeds, briers and 
brush within the bounds of the highway in said district, and the names of 
the owners and occupants of the several pieces or parcels of land against 
which said labor was performed, with a brief description of the same, are 
as follows: 


NAME OF OWNER. 

Name of occupant. 

Description of 
premises. 

Amount 

expended. 

1 

1 

1 


And in each case default was made by the occupant, after due notice 
had been given. 

Dated this.day of.. 18- 


Overseer of Highway District No. 


COUNTY OF. 


ss.: 


Town of. 

.. being duly sworn, sa^s the foregoing report subscribed by him 

is true. 

Subscribed and sworn to before me, 
this.day of.. 18.. 


Notary Public. 


No. 34. 

Certificate of Commissioners. 

(.Highway Law , § 71.) 


To .. Supervisors of the Town of ., m the 

County of . : 

The undersigned, commissioners of highways of said town, hereby 
certify that the annexed reports have been made by the overseers of 
highways whose names are thereto subscribed, pursuant to section 71 of 



























396 


The Highway Law of New York. 


Forms. 


the highway law; and that the several amounts therein expended were 

paid as follows: . 

Dated this..... .day of., 18_ 


Commissioners of Highways. 


No. 35. 

Laying Out Highway upon Dedication. 

(Highway Law, § 80.) 

Application. 

To the Commissioners of Highways of the Town of . , 

County of .; 

The undersigned, liable to be assessed for highway labor in the town of 

.> hereby applies to you to lay out a highway in said town, 

commencing.which proposed highway 

will pass through the lands of., and., who consent to the laying 

out of such highway. 

Dated this.day of., 18_ 


Dedication. 

., of the town of.. county of., N. Y., for 

value received, hereby dedicate to the town of., aforesaid, a 

strip of land across my premises in said town, for the purpose of a high¬ 
way, described as follows:. And I also 

hereby release said town from all damages by reason of the laying out and 
opening of said highway. 

In witness whereof, I have hereunto set my hand and seal, this. 

day of.,18_ 


STATE OF NEW YORK, ) 

h ss.: 


County of 
On this... 


day of 


,18...., before me, the subscriber, 






























The Highway Law of New York. 


397 


Forms. 


personally appeared.. to me known to be the person described in, and 

who executed the foregoing agreement, and he duly acknowledged to me 
that he executed the same. 


Notary Public. 


Order. 

At a meeting of the commissioners of highways of the town of. 

in the county of., on the.day.18_, for the 

purpose of deliberating on the propriety of laying out a highway in said 

town, hereinafter described, and on the application of., a person 

liable to be assessed for highway labor in said town, and a release from 
the owners of the land through which the highway is proposed to be 
opened, having been given, it is ordered and determined that a highway 
shall be, and the same is hereby laid out in said town as follows: Begin- 

ing. 

Dated this.day of.. 18.... 


Commissioners of Highways. 


No. SO. 

Laying Out Highway upon Release of Damages. 

(Highway Law, § 80.) 

Application. 

To the Commissioners of Highways of the Town of .. 

County of .; 

The undersigned, liable to be assessed for highway labor in the town of 

.. hereby applies to you to lay out (or alter) a highway in said 

town, commencing.which proposed 

highway will pass through the lands of.and., who consent to 

the laying out (or altering) of such highway. 

Dated this.'.day of.. 18- 




























398 


The Highway Law of New York. 


Forms. 


Consent of Town Board. 

The undersigned, the town board of the town of.. in the 

county of., hereby consent that the commissioners of high¬ 

ways of said town make an order laying out (or altering) the proposed 

highway described in the application of.. pursuant to section 80 of 

the highway law. 

Dated this.... .day of., 18_ 


Supervisor. 


Town Clerk. 


Justices of the Peace. 

Release of Damages. 

I,., of the town of., county of., N. Y., for 

and in consideration of the sum of. , hereby con¬ 

sent that a highway be laid out and opened (or altered) across my premises 

in the town of., county of., N. Y., pursuant to the 

application of., dated the.day of.., 18_, and release 

said town from all damages by reason of laying out and opening (or alter¬ 
ing) such highway through my premises. 

Dated this.day of., 18... 


Order. 

At a meeting of the commissioners of highways of the town of. 

in the county of.. on the.day of., 18..., for 

the purpose of deliberating on the propriety of laying out (or altering) a 
highway in said town hereinafter described, on the written application of 

.. a person liable to be assessed for highway labor in said town 

and the written consent of the town board of said town, and a release 
from the owners of the land through which the proposed highway is to be 
opened, the consideration of any one claimant not exceeding $100, and to 
all the claimants not exceeding $500, it is ordered and determined that a 































The Highway Law of Hew York. 


399 


Forms. 


highway shall be, and the same is hereby laid out in said town as follows; 

. And the line of survey shall be the centre of 

the highway, which shall be.rods in width. 

Dated this.day of., 18.... 


Commissioners of Highways. 


2Vo. 37. 

Application to Lay Out Highway. 

{Highway Law, § 82.) 

To the Commissioners of Highways of the Town of . 

County of .: 

The undersigned, liable to be assessed for highway labor in your town, 
hereby applies to you to lay out a highway in said town, as follows: 

.which proposed highway will pass through 

the lands of.and.(who consent to the laying out of the high¬ 

way, or as the case may be). 

Dated this.day of.. 18- 


No. 38. 


Application to Alter Highway* 

{Highway Law , § 82.) 

To the Commissioners r of Highways of the Town of .. 

County of .. 

The undersigned, liable to be assessed for highway labor in your town, 

hereby applies to you to alter the highway leading fiom.. to 

.. in said town as follows:. 

The', proposed alteration passes through the lands of. 

an d.(who consent to the proposed alteration, or as the case may be). 

Dated this .. .day of.. 18 ... 

































400 


The Highway Law of New York. 


Forms. 


No. 39. 

Application to Discontinue Highway. 

t Highway Law , $ 82.) 

To the Commissioners of Highways of the Town of . 

County of . 

The undersigned, liable to be assessed for highway labor in your town 
hereby applies to you to discontinue the old highway beginning 

.on the ground that said highway has been abandoned. 

Dated this_day of., 18- 


JVo. 40. 

Application for Commissioners. 

{Highway Law, § 83.) 

COUNTY COURT.—.County. 

In the Matter of the Application of.to Lay Out (Alter or Dis¬ 
continue) a Highway in the Town of.and the Assess- 

ment of Damages Therefor. 

To the County Court of . County: 

The petition of., of the town of., county of., 

respectfully shows that your petitioner is a person liable to be assessed for 

highway labor in the town of., county of.; that on 

the-day of., 18.he presented the following application in 

writing to the commissioners of highways of said town. 

That said application was in good faith made; that the commissioners of 
highways have not laid out (altered or discontinued) said highway pur¬ 
suant to section 80 of the highway law. 

Wherefore, your petitioner prays that three commissioners be appointed 
pursuant to section 84 of the highway law, to determine upon the necessity 
of the proposed highway (or altering or discontinuing the said highway), 
and to assess the damages by reason of laying out and opening (or altering 
or discontinuing) such highway. 

Dated this_day of., 18 ... 


























The Highway Law of New York. 


401 


Forms. 


STATE OF NEW YORK, ] 

>• ss.: 

County of. ) 

., being duly sworn, says he has read the foregoing petition by him 

subscribed, and that the same is true to the knowledge of deponent, except 
as to the matters therein stated to be alleged on information and belief, 
and as to those matters he believes it to be true. 


Subscribed and sworn to before me, 
this_day of. 18.. 


Notary Public. 


JVo. 41. 

Appointment of Commissioners. 

(.Highway Law , § 84.) 

At a.term of the County Court of the county of. 

held at.in the.in and for said county. 

Present, Hon.. county judge. 

In the Matter op the Application of., to Lay Out (Alter or 

Discontinue) a Highway in the Town of.and the As¬ 

sessment of Damages Therefor. 

On reading and filing the petition of., of the town of., in 

said county, dated the .... day of .» 18.., praying for the 

appointment of three commissioners, pursuant to section 84 of the high¬ 
way law, to certify as to the necessity of laying out and opening (altering 

or discontinuing) a highway as follows: .and to 

assess the damages by reason of laying out (altering or discontinuing) such 

highway, it is hereby ordered that ..., -and.of the town of 

said county, be, and they are hereby appointed such commis¬ 
sioners. 


26 


County Judge. 
























402 


The Highway Law of New York. 


Forms. 


No. 42. 

Subpoena and Oath. 

( Highway Law, § 84.) 

Subpoena. 

The People of the State of New York to _ and .... : 

You and each of you are hereby commanded to be and appear before us, 

commissioners appointed by the county court of.county, at the 

.. , in the town of.on the ... .day of., 18...at 

-o’clock in the.noon, to testify and give evidence in the matter 

of laying out (altering or discontinuing) a highway and assessing the 

damages therefor, in the town of., then and there to be heard 

and determined. 

Dated this.day of., 18_ 


Commissioners. 


Oath. 

You do solemnly swear that the evidence you shall give touching the 
necessity of laying out (altering or discontinuing) the highway in question, 
and assessing the damages therefor (or as the case may be), shall be the 
truth, the whole truth and nothing but the truth, so help you God. 


No. 43. 

Notice of Meeting. 

(.Highway Law , § 85.) 

Notice is hereby given that the undersigned has made application to the 

commissioners of highways of the town of ., in the county of 

.> for the laying out (altering or discontinuing) of a highway 


in said town, as follows:.which 

proposed highway (or alteration) will pass through the lands of. 

and by an order of the county court dated the_day of.18... 


.and.were appointed commissioners to certify as to the 

necessity of said proposed highway (alteration or discontinuance), and to 
























The Highway Law of New York. 


403 


Forms. 


assess the damages by reason of the laying out and opening (alteration or 
discontinuance) of such highway ; and that said commissioners will all 

meet at.in said town, on the_day of., 18....at 

....o’clock in the.noon, to examine the proposed highway (or the 

highway) and hear the commissioners of highways and all others inter¬ 
ested therein, and to assess the damages if such highway be determined 
to be necessary (or is altered or discontinued). 

Dated this_day of., 18- 


Affidavit of Service. 

STATE OF NEW YORK, ) 

>- ss.: 

County of. ) 

...being duly sworn, says that he caused notices in writing, of which 

the within is a copy, to be posted up at.. at..and- 

.. three public places in the town of., said county, on 

the_day of.. 18_, and that he served a like notice on 

.on the.day of 

.. 18__ by.and that said notices were 

posted at the respective places, and served on the respective persons herein 
named, at least eight days before the time specified therein for the meeting 
of said commissioners. 

Subscribed and sworn to before me, ) 
this_day of.18.. ) 

Notary Public. 


No. 44. 


Decision Favoring Application. 

{Highway Laiv, § 85.) 


The undersigned, by an order of the county court of.county, 

dated the.day of.. 18...., on the application of., 

having been appointed commissioners to certify as to the necessity of lay¬ 
ing out and opening^altering or discontinuing) a highway in the town of 

































404 


The Highway Law op New Yoke. 


Forms. 


., in said county, begining.. 

which proposed highway (or highway) crosses the lands of. 

.and to assess the damages to be caused thereby; now, there¬ 
fore, we, the said commissioners, having given due notice of the time and 

place at which we would meet, and all having met at.in said 

town on the.day of., 18-, pursuant to such notice, and 

having taken the constitutional oath of office, and on proof of the service 
and posting of the notices by the applicant, pursuant to section 85 of the 
highway law, having viewed the proposed highway (or alteration or high¬ 
way proposed to be discontinued) and the lands through which it is 
proposed to be laid out and opened (altered or discontinued) and having 
heard all the allegations of the commissioners of highways and the parties 
interested therein, and the evidence of all the witnesses produced, do 
thereupon certify, that in our opinion it is necessary and proper that th e 
highway be laid out and opened (altered or discontinued) pursuant to the 

said application of., dated the.day of. ,18_; and 

we have assessed the damages required to be asseseed by reason of laying 
out and opening (altering or discontinuing) such highway as follows: 

The damages of.at $.; the damages of.at $. 

Dated this.day of., 18.... 


Commissioners. 


No. 4z5. 


Decision Denying Application. 

{Highway Law , § 88.) 

The undersigned, by an order of the county court of.county 

dated the....day of. ,18...., on the application of., 

having been appointed commissioners to certify as to the necessity of 
laying out and opening (altering or discontinuing) a highway in the town 

of.in said county, as follows:. 

which proposed highway (or highway) crosses the lands of. 

and to assess the damages to be caused thereby; now, therefore, 
we, the said commissioners, having given due notice of the time and place 






























The Highway Law of New York. 


405 


Forms. 


at which we would meet, and all having met at. in said town, on 

the-day of. 18.pursuant to such notice, and having taken 

the constitutional oath of office, and on proof of the service and posting of 
the notices by the applicant, pursuant to section 85 of the highway law, 
having viewed the proposed highway (or alteration or highway proposed 
to be discontinued) and the lands through which it is proposed to be laid 
out and opened (altered or discontinued) and having heard all the allega¬ 
tions of the commissioners of highways and the parties interested therein, 
and the evidence of all the witnesses produced, do thereupon certify, that 
in our opinion such highway, or alteration or discontinuance, is unneces¬ 
sary and improper and should not be laid out (or should not be made, or 
such highway should not be discontinued). 

Dated this... .day of. 18.... 


Commissioners. 


No 4G. 


Notice of Motion to Confirm. 

{Highway Lcuc, § 89.) 

COUNTY COURT.— .County. 

In the Matter of the Application of.to Lay Out (Alter or Dis¬ 
continue) a Highway in the Town of.. and the 

Assessment of Damages therefor. 

To . and .: 

Take notice that an application will be made to this court at a. 

term thereof, to be held at the.in the.of.. on 

the.day of.. 18_, for an order confirming the decision 

of the commissioners in the above entitled matter, which decision is dated 

the.day of.,18__ and for such other and further relief 

as to the court may seem proper; that said application will be made upon 
said decision and upon the affidavits and papers, with copies of which you 
are herewith served. 

Dated this.day of.> 18- 





























406 


The Highway Law of New York. 


Forms. 


No. 47. 

Order of Confirmation. 

(Highway Law , \ 89.) 

At a term of the.County Court, held at the.in the 

.of., on the.day of., 18_ 

Present—Hon., county judge. 

COUNTY COURT—. County. 

In the Matter of the Application of.to Lay Out (Alter or Dis¬ 
continue) a Highway in the Town of., and the Assess¬ 

ment of Damages therefor. 

On reading and filing the decision of the commissioners,...and 

-, in the above entitled matter, dated the_day of., 18_, 

by which it appears..with proof of due service 

upon.and.of notice of this application and. 

and on motion of., counsel for., after hearing., counsel 

for.and., opposed, and on reading.it is here¬ 

by ordered that the said decision be and the same is hereby confirmed. 


County Judge. 


No. 48. 

Order Laying Out after Confirmation. 

(Highway Law , § 89.) 

Whereas, ....did present to us as commissioners of highways of the 

town of .> in the county of.a written application 

dated the... .day of.. 18...., to lay out a highway in said town : 

and, whereas, commissioners were appointed by the county court of said 
county, pursuant to section 84 of the highway law, and after having duly 
met, certified that such proposed highway was necessary and proper and 
should be laid out and opened, and assessed the^damages therefor ; and the 
said court having confirmed the decision of said commissioners (or no 
motion having been made to the county court to confirm, vacate or modify 
such decision) which said application, orders and certificate (or other 






























The Highway Law of Hew York. 


407 


Forms. 


papers) were duly filed in the office of the town clerk of said town, to 
which reference is here made. 

Now, therefore, we, the undersigned commissioners of highways of said 
town, pursuant to section 89 of the highway law, do hereby lay out such 
highway as so applied for and ordered, whereof a survey has been made as 

follows : .and the line of such survey 

shall be the center of the highway, which is to be.rods in width. 

Dated this_day of.. 18- 


Commissioners of Highways. 


JSTo. 49. 

Notice of Motion to Vacate or Modify. 

(Highway Lcnv, § 89.) 

County Court.—.County. 

In the Matter of the Application of-to Lay Out (Alter or Discon¬ 
tinue) a Highway in the Town of.. and the Assessement 

of Damages therefor. 

To. .. .and. 

Take notice that an application will be made to this court at a. 

term thereof to be held at the.in the.of., 

on the.day of.. IB for an order vacating 

(modifying or correcting), in the following particulars.the 

decision of the commissioners in the above entitled matter, which decision 

is dated the... .day of., 18...., with costs on this motion, and 

such further relief as the court may deem proper. That such application 
will be made upon said decision and the affidavits and papers, with copies 
of which you are herewith served. 

Dated this-day of.. 18- 


























408 


The Highway Law of New York. 


Forms. 


No. 50. 

Order Vacating or Modifying, 

« 

(Highwvy Laiv, § 89.) 

At a term of the .County Court, held at the.in the 

.of.. on the.day of.. 18- 

Present—Hon., county judge. 

In the Matter of the Application of., to Lay Out (Alter or Dis¬ 
continue) a Highway in the Town of., and the Assess¬ 

ment of Damages therefor. 

On reading and filing the decision of the commissioners.,.and 

., in the above entitled matter, dated the.day of., 18.., 

by which it appears.with proof of due 

service upon., and.of notice of this application and. 

and on motion of., counsel for., after hearing., 

counsel for. and.opposed, and on reading., it 

is hereby ordered that the said decision be and the same is hereby vacated 

(or modified or corrected as follows):.(or that a new hearing be 

had before the same or other commissioners to be named herein), with 
$-- .costs of this motion to.against. 


County Judge. 


No. 51. 


Consent of Owner. 

(.Highway Laiv, § 90.) 


Whereas .has made application in writing to the commissioners of 

highways of the town of., in the county of., dated 

^he.day of., 18-, to lay out a highway in said town 

beginning at (insert description), and which said highway will pass through 
my orchard, 

* 

Now, therefore, I do hereby consent that such highway be so laid out, 
opened, worked and used through my said orchard; but this consent shall 
not be construed as a waiver or release of my claim for damages, by reason 
thereof. 

Dated the.day of., 18_ 


day of 









































The Highway Law of New York. 


409 


Forms. 


Wo. 52. 

Order Laying Out, after Consent. 

(Highway Law, § 90.) 

Whereas, .did, on the... .day of. , 18. ..., present to us as 

commissioners of highways of the town of., in the county of 

.a written application to lay out a highway in said town, pass¬ 
ing through an orchard of...., of the growth of four years or more, and 
the said... .having consented that such highway be so laid out, 

Now, therefore, we, the undersigned commissioners of highways, pursu¬ 
ant to section 90 of the highway law, do hereby lay out said highway, as 

so applied for, whereof a survey has been made as follows : . 

and the line of survey is to be the center of the highway which is to be 
.rods in width. 

Dated this-day of.. 18 - 


Commissioners of Highways. 


Wo. 53. 

Certificate of Commissioners to County Court. 

(Highivay Law, § 90.) 

COUNTY COURT— .County. 

In the Matter of the Application of .. to Lay Out a Highway 

in the Town of., and the Assessment of Damages 

THEREFOR. 

To the County Court of . County : 

The undersigned, commissioners of highways of the town of.> 

in said county, hereby certify that on the... .day of.. 18*..., 

...., who is liable to be assessed for highway labor in said town, made a 
written application to us as such commissioners to lay out a highway in 
said town, passing through an orchard of...., of the growth of four years 
or more, pursuant to section 90 of the highway law, as follows. 

. And that the said.does not consent thereto; 


























410 


The Highway Law of New York. 


Forms. 


that the following proceedings were had upon such application: . 

. We further certify that the public 

interest will be greatly promoted by the laying out and opening of such 
highway through said orchard; and commissioners appointed by this court 
have certified that such highway is necessary and proper, and have 

assessed the damages of.by reason thereof, at $. 

Dated this.day of.. 18_ 


Commissioners of Highways. 


Yo. 54. 

Order of County Court. 

{Highway Laic, § 90.) 

At a term of the.county court, held at., in the 

.of.. on the.day of., 18_ 

Present—Hon., county judge. 

In the Matter of the Application of., to Lay Out a Highway in 

the Town of., and the Assessment of Damages 

THEREFOR. 

Upon reading and filing the certificate of.,.and. , com¬ 
missioners of highways of the town of., in the county of 

., dated the.day of.,18_, stating. 

..with proof of due service of 

notice of this motion, and upon reading the .and after 

hearing., of counsel for the applicant, and_, of counsel for__ 

opposed, it is hereby ordered that said highway be laid out and opened 
pursuant to section 90 of the highway law, with ten dollars costs of this 
motion. 


County Judge. 



































The Highway Law of New York. 


411 


Forms. 


JTo. 55. 

Order of Appellate Division. 

(Highway Law , § 90.) 

In the Appellate Division of the Supreme Court, for the.... .depart- 

ment, held at the court-house in the city of.on the. 

day of., 18- 

Present—Hon.,..., Justices of the 

Supreme Court. 

In the Matter of the Application of. to Lay Out a Highway 

in the Town of., and the Assessment of Damages 

therefor. 

.,., and., as commissioners of highways of the town 

of... in the county of., having presented to us the 

order of the county court of.county, dated the.day of 

.. 18_, that a highway be laid out in said town, passing 

through the orchard of., of the growth of four years or more, pur¬ 
suant to section 90 of the highway law, the said.not consenting 

thereto, with the certificate and proofs upon which the said order was 
granted, duly certified by such court, with proof of due service of notice 

of this motion, on the said. , and after hearing., of counsel for 

the applicant, on the motion, and., of counsel for.. opposed, it 

hereby ordered that the said order of such county court be, and the same 
is hereby confirmed, with $.costs of this motion. 


JTo. 50. 

Order laying Out after Confirmation by Appellate Division. 

(.Highway Law, § 90.) 


Whereas, _did, on the-day of .. 18-, present to us 

as commissioners of highways of the town of.. in the county 


of.. a written application to lay out a highway in said town, 

passing through an orchard of-, of the growth of four years or more, 

and such proceedings having been had thereon, pursuant to section 90 of 
the highway law, that the county court of said county has ordered said 
highway to be laid out and opened, which said order lias beeu duly con¬ 
firmed by a general term of the Supreme Court in the.department, 






























412 


The Highway Law of New York. 


Forms 


which said application, certificates and orders and other papers in said 
proceedings are duly filed in the office of the town clerk of said town, t° 
which reference is here made. 

Now, therefore, we, the undersigned commissioners of highways, pur¬ 
suant to section 90 of the highway law, do hereby lay out said highway 
as so applied for and ordered, whereof a survey has been made as follows: 

Beginning.and the line of survey is to be the center of 

the highway, which is to be_rods in width. 

Dated this_day of.. 18.... 


Commissioners of Highways. 


JS r o. 57. 

Notice of Meeting. 

(.Highway Law , § 94.) 

To... .and....: 

Notice is hereby given that the undersigned, who are commissioners of 

highways for the town of.,will meet at.in said town, 

on the-day of. ...., 18-- at... .o’olock in the.noon, 

for the purpose of determining upon the necessity of and arriving at a 
common understanding in relation to the laying out of a new highway 
(or the altering of a highway) extending from the town (or city or village) 

of.to the town (or city or village) of., and described 

as follows :. 

Dated this-day of., 18.... 


Wo. 58. 

Certificate of Disagreement. 

(Highway Law , § 94.) 

COUNTY COURT—.County. 

In the Matter of the Application of. .. .to Lay Out (or Alter) a 
Highway Extending from the Town (or City or Village) of 

.to the Town (or City or Village) of. 

To the County Court of . County: 

The undersigned, commissioners of highways of the town of.. 


























The Highway Law of New York. 


413 


Forms. 


in the county of., hereby certify that on the .. .day of. 

., 18-,-, who is liable to be assessed for highway labor in the 

town of., made a written application to us as such commis¬ 

sioners to lay out (or alter) a highway extending from the town (or village) 

of., in the county of., to the town (or city or 

village) of. in the county of. That the highway 

commissioners of the said towns (or the said town and the city or village 
authorities of the said city or village) cannot agree as to the necessity of 
such highway or the terms upon which the same shall be laid out. 


Commissioners. 


JSTo. o9. 

Order Appointing Commissioners. 

(Highway Laic , § 94.) 

At a.term of the county court of the county of., held 

at.in the.in and for said county. 

Present—Hon-- county judge. 

In the Matter of the Application of....to Lay Out (or Alter) a 
Highway Extending from the Town (or City or Village) of 

.. to the Town (or City or Village) of. 

On reading and filing the certificate of., and-, highway com¬ 
missioners of the town of.. and..... and... ., of the city or 

village of., in the county of.. dated the-day of 

. . 18_, stating and upon reading the..and after 

hearing...., of counsel for the applicant, and., of counsel foi.. 

opposed, it is hereby ordered that---- and-, of the town of. 

., county of., be, and they are hereby appointed commis¬ 

sioners to determine upon the necessity of laying out (or altering) such 
highway (or adjust the terms upon which such highway shall'be laid out 

(or altered). 


County Judge. 



































414 


The Highway Law of New York. 


Forms. 


JVo. GO. 

Decision of Commissioners. 

(Highway Law , § 94.) 

The undersigned, by an order of the county court of.county, 

dated the.day of.. 18_, having been appointed com¬ 

missioners to certify as to the necessity of laying out (or altering) a high¬ 
way extending between the town (city or village) of.and the 

town (city or village) of., in the county of.. and 

described as follows.; now, therefore, we, the said commis¬ 

sioners, having given due notice of the time and place at which we would 

meet, and all having met at., in the town of.. on 

the.day of. 18...., pursuant to such notice, and having 

taken the constitutional oath of office, and on proof of the service of the 

notice on the highway commissioners of the town of.. (or of 

the town of.and city or village of.) and having 

viewed the proposed highway (or proposed alteration of a highway) and 
the lands through which it is proposed to be laid out (or altered), and 
having heard all the allegations of the commissioners of highways and 
the parties interested therein, and the evidence of all the witnesses pro¬ 
duced, do thereupon certify that in our opinion it is necessary and proper 
that the highway be laid out (or altered) and we have assessed the 
damages required to be assessed by reason of laying out (or altering) such 
highway as follows: 

The damages of.at $., etc. 

Dated this.day of., 18_ 


Commissioners. 


J\ r o. 61. 

Applicaton to Lay Out Highway on Town Line. 

{Highway Laic, § 97.) 

To the Commissioners of each of the Towns of . and . in the County 

of .: 

We, the undersigned,.. an inhabitant of the town of.in 































The Highway Law of New York. 


415 


Forms. 


said county, liable to be assessed for highway labor therein, and., 

an inhabitant of the town of., said county, and liable to be 

assessed for highway labor therein, hereby apply to you to lay out a high¬ 
way on the line between said towns as follows., and which 

said highway will pass through the lands of.and. 

Dated this.day of.,18_ 


Division into Districts. 

It is hereby ordered that the said highway be divided into (two) districts 

as follows: That the part thereof from.to.shall be 

one of said highway districts, and shall be allotted to the town of. , 

and the residue of said highway shall be the other of said highway 

districts, and shall be allotted to the town of. 

Dated this.day of.. 18- 


Commissioners of Highways of the Town of 


Commissioners of Highways of the Town of 


JSTo. 62. 

Description of Abandoned Highway. 

(Highway Law , § 99.) 

We, the undersigned, commissioners of highways of the town of 
.. in the county of.. hereby certify that the fol¬ 
lowing highway., has been abandoned by the public, and 

is no longer used as a public highway; and pursuant to section 99 of the 
highway law, the same is discontinued. 

Dated this-day of.. 18- 


Commissioners of Highways 





































416 


The Highway Law of New York. 


Forms. 


No. 03. 

Notice of Fallen Tree. 

{Highway Laic, § 103.) 

To . 

Please take notice that a tree has fallen from your inclosed land into the 

highway at., and you are hereby required to remove the same 

within two days after the service of this notice. 

Dated this_day of., 18.... 


No. 04. 

Notice of Encroachment. 

{Highway Laic, § 105.) 

To . 

You are hereby notified by the undersigned commissioners of highways 
of the town of.. in the county of., that the high¬ 

way in district No.. in said town adjoining the premises owned (or occu¬ 
pied by you at.have been encroached upon (or obstructed) 

to the extent of.by.and you are hereby directed 

to remove the same within sixty days after the service of this notice. 
Dated this... .day of., 18.... 


Commissioners of Highways. 


No. Oo. 


Application for Private Road. 

{Highway Law, § 106.) 

To the Commissioners of Highways of the Town of . County 

of . 

The undersigned, who is liable to be assessed for highway labor in your 
town, hereby makes application to you to lay out a private road for his 






















The Highway Law of New York. 


417 


Forms. 


use and benefit as follows:. 

and said proposed road will run through the land of., occupied 

by. 

Dated this-day of..... 18.... 


TVo. 66 . 

Notice to Applicant. 

{Highway Law , § 108.) 

To . Owner , and . Occupant: 

., of the town of., in the county of. 

having made written application to us, the undersigned, as commissioners 
of highways of said town, to lay out a private road for his use and benefit 
in said town, a copy of which is hereto attached, you are hereby notified 

that a jury will be selected at.. in said town, on 

the_day of.,18_, at_o’clock in the.noon, for the 

purpose of determining upon the necessity of such road, and assessing the 
damages therefor. 

Dated this_day of.. 18- 


Commissioners of Highways. 


JVo. 67. 


Affidavit of Service. 

{Highway Law , § 109.) 


COUNTY OF. ) 

> ss.: 

Town of. ) 

.. being duly sworn, says that he served the application and notice 

hereto attached on.and.. on the.day of., 18.... 


by delivering to and leaving with each of them true copies of the same. 


Subscribed and sworn to before me, j 
this.day of.,18- S 


27 


Notary Public. 


































418 


The Highway Law of New York. 


Forms. 


No. 68. 


Venire. 

(Highway Law , § 112.) 


COUNTY OF 
Town of... 


ss.: 


To .: 

You are hereby summoned and required to appear at the.. in 

said town of.. on the.day of., 18...., at. 

o’clock in the.noon, to form a jury of freeholders to determine as to 

the necessity of laying out a private road through the lands of. on 

the application of.. and to assess the amount of damages sustained 

by reason of such opening, if it is determined to open the same. 

Dated this.day of., 18... 


Commissioners of Highways. 


No. 69. 


Verdict of Jury. 

(Highway Law , § 114.) 


COUNTY OF 


V ss.: 

Town of. ) 

We, the undersigned, being six disinterested freeholders of the said 

town of.having met on the.day of.,18_, at 

the house of., in the said town, and having been duly sworn 

well and truly to determine as to the necessity of the private road 

described in the application of.,a copy of which is hereto 

attached, and having viewed the premises through which it is proposed 
to be laid out, and having heard the parties and evidence produced, do 
hereby certify that in our opinion it is necessary and proper to lay out a 




























The Highway Law of New York. 


419 


Forms. 


private road for the use and benefit of., pursuant to his said 

application, and we assess the damages of.at $. 

Dated this.day of.. 18_ 


JSTo. 70. 

Certificate of Commissioners. 

(.Highway Law , § 116.) 

Whereas, ....did present to us as commissioners of highways of the 

town of., in the county of., a written application 

to lay out a private road in said town for his use and benefit, hereinafter 
described ; and six disinterested freeholders having convened, after due 
notice to the owners and occupants of the lands through which said road 
is proposed to be laid, and after viewing said lands and hearing the parties 
and witnesses produced, certified that said road is necessary and proper* 
and assessed the damages to be caused thereby, which certificate was 
dated the_day of.. 18...., and duly filed with said applica¬ 

tion, in the office of the town clerk of said town ; and no motion has been 
made to the county court to confirm, vacate or modify (or as the case 
may be). 

Now, therefore, we, the undersigned, commissioners of highways of said 
town, pursuant to section 116 of the highway law, do hereby lay out said 
private road as so applied for and certified to, whereof a survey has been 

made as follows :.and the line of survey is to be the center of 

the road, which is to be... .rods in width. 

Dated this ...day of.,18- 


Commissioners of Highways. 


























420 


The Highway Law of New York. 


Forms. 


JSTo. 71. 

Notice by Highway Commissioners to those of Another Town. 

(Highway Law, § 135.) 

To the commissioners of highways of the town of., in the 

county of., take notice that in pursuance of the proceedings of 

the board of supervisors of the county of., as follows :., 

you are required to join with the commissioners of highways of the town 

of.. in constructing (or repairing) such bridge, at the joint 

expense of said towns, and to serve upon us your written consent thereto, 
within twenty days after service of this notice upon you, and that in case 
of your failure so to do the undersigned commissioners of highways of 

the town of., will proceed to construct (or repair) such bridge 

pursuant to law. 

Dated this-day of., 18.... 


Commissioners of Highways of the Town of 


JSo. 72. 

Laying Out County Highways. 

(County Law, l 61.) 

Application. 

To the Board of Supervisors of the Comity of .; 

We, the undersigned, being twenty-five resident taxpayers of the county 

of.. hereby make application, in pursuance of section 61 of 

the county law, for the laying out of a county highway of the width of 

.. described as follows:. 

Dated this-day of., 18_ 


Notice. 

To the Highway Commissioners of the Several Towns in the County of 


Notice is hereby given that on the... .day of 


,18. 


. .the fore- 

























The Highway Law of New York. 


421 


Forms. 


going application will be presented to the board of supervisors of the 

county of. 

Dated this_day of., 18_ 


STATE OF NEW YORK 


ss.: 


County of. ) 

.. being duly sworn, says that he is a resident of. ..., N.Y., 

and that he served copies of the petition and notice annexed hereto, per¬ 
sonally, on each of the following commissioners of highways at the times 
and places opposite their names, respectively: 

.at., N. Y.,.. at_o’clock in the.noon. 

.at., N. Y., .. at... .o’clock in the.noon. 


Subscribed and sworn to before me, I 
this_day of.,18_ ) 

Notary Public. 

Resolution by Supervisors. 

At a meeting of the board of supervisors of the county of.. 

held at.on the... .day of., 18.... 

Whereas, application has been made for the laying out (altering or dis¬ 
continuing) of a highway in said county, and whereas satisfactory proof 
has been made to us of the service of a copy of such application, together 
with a notice of intention to make the same, upon a commissioner of 
highways of each town in said county. 

Resolved, That a highway of the width of.be laid out in accord¬ 
ance with such application, as follows: . 

., Chairman. 

., Cleric. 

Adopted. 

Ayes.... 

Noes.... 










































































































































































. 

























































The Highway Law of New York. 


423 


Index. 


r 


INDEX. 


A. 

ABANDONMENT: 

of highway, what constitutes, 99. 

ABATEMENT: 

see, Tax. 

ACCOUNTS: 

how made out, 16. 

ACTION: 

against overseer to collect penalty, 32. 
by town against commissioners, 26. 
for injuries to highway, 19. 

ADJOURNMENT: 

of proceedings to lay out highway, 131. 

ALBANY COUNTY: 

bicycle paths in, 362. 

APPEALS : 

by owner of non-resident lands from assessment, 41. 
by towns jointly liable to build bridge, 143. 
from decisions laying out, &c., highway, 83. 

APPENDIX : 

General Laws, 171. 

Miscellaneous Laws, 278. 

ASSESSMENT: 

see, Labor on Highways, Tax. 


BENEFITS: 

assessment of, 81. 


B. 







424 


The Highway Law of New York. 


Index. 


BICYCLE : 

as a carriage, 153. 
entitled to free use of highway, 154. 
injuries to bicycle paths, 154, 155. 
paths in Albany county, 362. 

in Cattaraugus county, 349. 
in Columbia county, 367. 
in Monroe county, 351. 

BONDS: 

issue of, by county, 52. 
proceeds of county bonds, 53. 

BRIDGE: 

additional tax for, 13, 206. 
between cities and towns, 326. 
breaking of, when town not liable for, 147. 
care of, generally, 3. 
corporations, 238. 

construction of bridges by, 238, 243. 
certificate of completion of bridge, 244. 
erection of gates by, 244. 
rates of toll by, 244. 
toll gathers, 246. 
penalty for running gate, 246. 
location and change of gates, 246. 
office of corporation, 251. 
consolidation of corporations, 251. 
bridge liable to taxation, 253. 
penalty for fast driving over, 255. 
acts of directors prohibited, 255. 
actions for penalties, 255. 
proof of incorporation, 255. 
when stockholders to be directors, 256. 
dissolution of corporation, 256. 
extension of corporate existence, 258. 
county aid in construction of, 132, 135. 

supervisors to levy tax, 136. 
expense of building or repairing, 132. 






Tiie Highway Law of New Yoke. 


425 


Index. 


BRIDGE : 

statement of, 136. 
extraordinary repairs of, 14. 

auditing expense of, 15. 
iron bridge, erection of, 143. 
joint liabilities of towns as to, 136. 
refusal to repair, 138, 142. 
proceedings in court, 139. 
commissioners to institute proceedings, 140. 
duty of commissioners, 140. 
report of commissioners, 141. 
appeals from decision of court, 141. 
power of court on appeal, 141. 
penalty for fast driving on, 143, 255. 

notice of, 143, 255. 
repair of, generally, 4. 
toll-bridge, when unsafe, 17. 
see, Canal, River, Village. 


CANAL : 


C. 


as highway, 103. 

bridges built by municipal corporations, 269. 

lift-bridge, &c., built by city, 270. 
commutation for bridges, 266. 
farm and road bridges over, 265. 

restriction upon construction of, 268. 
iron bridges, 267. 

models and location of bridges, 268. 
penalty for fast driving over bridge, 270. 
private road in lieu of bridge, 267. 


CARRIAGE : 

definition of term, 153. 
free use of highway by, 154. 
owners of, liable for acts of drivers, 153. 
see, Law" of the Road. 


CATTARAUGUS COUNTY: 
bicycle paths in, 349. 




426 


The Highway Law of New York. 


Index. 


CERTIORARI: 

to review assessment in laying out road, 85-87. 

COLUMBIA COUNTY : 

bicycle paths in, 367. 

COMMISSIONERS OF HIGHWAYS: 
actions against, by town, 26. 
actions by, for injuries to highway, 18. 
additional tax, how raised by, 13. 
altering highway, 64-131. 
as fence viewers, 3, 206. 
as inspectors of turnpikes, 248. 
assessment for unperformed labor, 59. 
assessment of highway labor by, 37. 
assignments to highway districts by, 6. 
as water commissioners, 4. 
bridges, duty as to, 132-143. 
care of sewers, drains and culverts by, 4. 
certificate to accounts, 16. 

collection of penalties against overseer by, 32, 59. 

compensation of, 214. 

consent of, to pipes in highway, 18. 

consent of, to railroad crossing highway, 279. 

contracts of, to be filed, 321. 

describing and recording highways by, 4. 

discontinuing highway, 64-131. 

division of town into highway districts by, 4. 

duties of in commissioner districts, 34. 

election of, 3, 205, 342. 

expenditure of moneys by, 7. 

extraordinary repairs by, 14. 

expense thereof, 15. 
fences removed by, 113. 
fires in woods, duties as to, 211. 
general powers of, 3. 
guide-boards erected by, 9. 
holding over, 3. 
in Kings county, 215. 






The Highway Law of New York. 


427 


Index. 


COMMISSIONERS OF HIGHWAYS : 
laying out highway, 64-131. 
lists of inhabitants delivered to, 36. 
meetings of, for assessment, 36. 
mile-stones erected by, 9. 
non-resident lands, to make list of, 36. 
oath of office of, 3. 
overseers to be appointed by, 6.^ 
powers as to state roads, 278. 
powers of one commissioner, 3. 
private roads, duties as to, 124-131. 
protection of highways against streams, 8. 
removal from office, 3. 
repair of highways and bridges by, 4. 

»* 

reports of, 28. 
resignation of, 3, 210. 

road machines and implements purchased by, 10. 
sidewalks, may authorize laying of, 44. 
stone crushers purchased by, 12. 

custody of, 13. 
term of office of, 3, 205. 
to deliver books to successor, 211. 
to render account to town board, 212. 
to require overseers to give warning, 7. 
treasurer of, 2. 

undertaking of, 2. 
trees, may authorize planting of, 44. 
undertaking of, 3, 209, 210. 
unsafe toll-bridge, duties as to, 17. 
vacancy in office of, 3, 210. 

COMMUTATION: 

money to be collected by overseers, 29, 55. 
rate of, 55. 

CONSTITUTION: 

provision as to highways, 171. 




428 


The Highway Law of New York. 


Index. 


CORPORATION: 

assessment of, for highway labor, 37, 38. 
assignment of, to highway district, 6. 
commutation by, 38, 55. 
day’s labor by, what it consists of, 57. 
may furnish substitute, 57. 
notice to work to be given to, 54. 
penalty for neglect to work or commute, 57 . 
see. Bridge, Turnpike. 

COSTS: 

of assessment of damages on laying out road, 92. 
auditing of, 92. 

of motions, in' proceedings under Highway Law, 145 
COUNTY: 

aid in construction and repair of bridges, 132, 135. 

supervisors to levy tax, 136. 
county road system, adoption of, 50. 
expenses of how paid, 51. 
issue of bonds, 52. 
jurisdiction of roads, in whom, 52. 
proceeds of bonds, 53. 
engineer, 51. 

to have charge of county roads, 52. 
general duties as to roads and bridges, 193-204. 
supervisors to collect arrearages of labor, &c., 59. 
to have charge of county roads, 52. 

COUNTY ROAD: 
see, County. 

CROSSINGS: 

see, Highway, Law of the Road, Railroad. 

CUL DE SAC: 

as highway, 102. 







The Highway Law of New York. 


429 


Index. 


DAMAGES: 


D. 


audit of, without action, 27. 
for laying out highway, 68, 78, 81. 
auditing of, 92. 
review of, 85. 

for laying out private road, 128. 


DEDICATION: 

and acceptance, 66. 
of highways, 65. 
of streets in villages, 220. 


DEFINITION: 

of highway, 101. 

DISTRICT: 

see, Labor on Highway, Town. 


DRIFTWAY: 

as highway, 102. 


E. 

ELECTION: 

of highway commissioners, 3. 

ELECTRIC LIGHT: 

right of line in highway, 111. 

ELEVATED RAILROAD: 
see, Railroad. 

ENCROACHMENT: 
see, Highway. 

ENGINEER: 

county engineer, 51. 

to have charge of county roads, 52. 

EXTRA VIAM: 

right to pass over lands adjacent to highway, 112. 


see, Highway. 




430 


The Highway Law of New York. 


Index. 


FENCE: 

abatement of tax for removal of, 62. 
removal of by commissioners, 113 
wire fences may be erected by town, 289. 

FENCE VIEWERS: 

highway commissioners as, 3, 206. 

FERRY: 

appendages for rope ferries, 160. 
as highway, 102. 
leasing right of passage, 160. 
licenses for running, 157. 

undertaking on application for, 160. 
schedule of rates to be posted, 161. 

penalty for failure to post, 161. 
use of highway by ferry corporation, 111. 

FINES: 

to be collected by overseers, 29. 

FORMS: 

abandoned highway, description of, 415. 
accounts for services and materials, 378. 
altering, discontinuing, laying out highway: 
laying out on dedication, 396. 
laying out on release of damages, 397 
application to lay out, 399. 
application to alter, 399. 
application to discontinue, 400. 
application for commissioners, 400. 
appointment of commissioners, 401. ' 
subpoena and oath, 402. 
notice of meeting of commissioners, 402. 
decision favoring application, 403. 
decision denying application, 403. 
notice of motion to confirm, 405. 
order of confirmation, 406. 
order laying out after confirmation, 406. 
notice of motion to vacate or modify, 407. 
order vacating or modifying, 408. 




The Highway Law of New York. 


431 


Index. 


FORMS : 

appeal by non-resident, 386. 
application to lay water-pipes in highway, 380. 
appointment of commissioner to fill vacancy, 371. 
appointment of overseers, 375. 
claim for damages against town, 381. 
complaint about unsafe toll-bridge, 379. 
consent of town board to repair of highway, &c., 376. 
county highway, laying out, 420. 
disagreement of officers of different towns: 
notice of meeting, 412. 
certificate of disagreement, 412. 
order appointing commissioners, 413. 
decision of commissioners, 414. 
division of town into highway districts, 375. 
highway on town line, application to lay out, 414 
laying out of highway through improved lands: 
consent of owner, 408. 
order laying out, after consent, 409. 
certificate of commissioners to county court, 409. 
order of county court, 410. 
order of appellate division, 411. 

order laying out after confirmation by appellate division, 411. 
list of inhabitants, 383. 
list of non-resident lands, 384. 
list of unperformed labor, 391. 
new assessment by overseers, 387. 
notice by commissioners to those of another town, 420. 
notice of encroachment, 416. 
notice of fallen tree, 416. 
notice to corporation of assessment, 390. 
notice to non-residents of assessment, 391. 
notice to overseers of appointment, 376. 
notice to owners of unsafe toll-bridge, 379. 
notice to remove obstructions, 383. 
order authorizing planting of shade trees, 387. 
permission to lay water-pipes in highway, 380. 
private road : 





432 


The Highway Law of New York. 


Index. 


FORMS: 

application for, 416. 
notice to applicant, 417. 
affidavit of service of notice, 417. 
venire,418. 
verdict of jury, 418. 
certificate of commissioners, 419. 
report of highway commissioners, 382. 
request by commissioners to convene town board, 377. 
resignation of highway commissioner, 371. 
return of overseer, 392. 
road warrant, 384. 

sidewalks, order authorizing construction of, 387. 
application to anticipate tax for, 388 
certificate of anticipation, 389. 
system of taxation, request to change, 390. 
undertaking of highway commissioner, 372. 

of treasurer, 374. 
weeds, notice to remove, 394. 
report of overseer as to, 394. 
certificate of commissioners, 395. 


GOOD ROADS: 

an act providing for, 354. 


G. 


GUIDE-BOARDS: 


erection of, by highway commissioners, 9. 
by turnpike corporations, 250. 

H. 


HIGHWAYS : 


abandonment of, 99. 

additional tax for improvement of, 13, 206. 
altering, laying out, discontinuing, 64-131. 
application for, 73. 
application for commissioners, 73. 
appointment of commissioners, 75. 
duties of commissioners, 75. 
notice of meeting of commissioners, 77. 




The Highway Law of New York. 


433 


Index. 


HIGHWAYS : 

decision of commissioners, 78, 83. 
assessment of damages, 78, 81. 
assessment of benefits, 81. 
motion to confirm, &c. f decision, 83. 
certiorari to review assessment, 85-87. 
limitations upon laying out, 87. 
laying out through improved grounds, 87. 
laying out through burying grounds, 91. 
costs of assessment, 92. 
damages assessed and collected, 92. 
auditing of damages and costs, 92. 
disagreement of officers of different towns, 94, 95. 
highway in two or more towns, 97. 
highway upon town line, 97. 
final determination, how carried out, 99. 
alteration for canal purposes,« 265. 
animals straying on, proceedings, 174. 
appropriation of money for, by special town meeting, 206. 
by use, 101, 104. 
care of, generally, 3, 29. 
certain license moneys to be devoted to, 291. 
compensation for laying out, &c., 68. 
crossed by pipe line, 235. 
crossed by railroad, 271. 
crossing railroad, 91, 279. 
damages for discontinuing, 325. 
dedication of, 65. 
definition of, 101. 
canal as, 103. 
cul de sac as, 102. 
driftway as, 102. 
ferry as, 102. • 
particular cases, 104. 
pier as, 102. 
railroad as 103. 
river as, 103. 

28 






434 


The Highway Law of New York. 


Index. 


HIGHWAYS : 

shore as, 102. 
street as, 102. 
turnpike as, 103. 
way by necessity, 104. 
description of, 4. 
districts, 5. 

drainage, sewer and water pipes in, 18. 
encroachment on, penalty for, 114. 
exemption of national guard from toll, 113, 245. 
extraordinary repairs of, 14. 

expense thereof, 15. 
free use of by all vehicles, 154. 
guide-boards erected on, 9. 
injuries to, action for, 19. 
damages for, 145. 
penalties for, 146, 147. 
laid out along division lines, 131. 
leaving horses without being tied, 152. 
liability of towns for defects in, 20. 
macadamizing, 317, 320. 
machines and implements for work on, 10. 
mile-stones erected on, 9. 
monuments to be erected as boundaries, 29. 
noxious weeds to be cut down, 29. 
obstructed, to be opened by overseers, 30. 
obstructing, penalty for, 114. 
overseers, duties of in relation to, 29, 
recording of, 5. 

removal of obstructions and encroachments, 118. 

repairing road on line between city and town, 283, 

repair of, generally, 4, 29. 

steam engines passing on, 147. 

stone and rubbish not to be dumped on, 156. 

stone-crushers and materials for, 12. 

expense of, 317. 
stone in, to be removed, 29. 
survey of, 71. 








The Highway Law of New York. 


435 


Index. 


HIGHWAYS: 

uses of, 105. 

by electric light company, 111. 
by elevated railroads, 109. 
by ferry corporation, 111. 
by national guard, 113. 
by steam railroads, 108. 
by street railroads, 110. 
by telegraph line, 110. 
by telephone.line, 110. 
by turnpike corporations, 111. 
extra viam, 112. 
for floating logs and timber, 260. 
laying of pipes, 111. 
miscellaneous rights and uses, 112. 
ownership of the fee, 105-108. 
penal code provisions as to, 112. 
widening of, 311, 328. 

see, Good Roads, Indians, Labor on Highways, Law of the 
Road, Railroad, State Roads, Village. 

HIGHWAY COMMISSIONER: 

see, Commissioner of Highways. 

HIGHWAY LAW: 

construction of, 164. 
laws repealed by, 163, 165. 
publication of, 314. 
saving clause, 163. 
title, short, of act, 2. 
when to take effect, 164. 

I. 

IMPLEMENTS : 

purchase of, for work on highways, 10. 

to be furnished by those assessed for highway labor, 56. 

INDIANS: 

highways on tribal lands, 275# 
highway labor by, 276. 





436 


The Highway Law of New York. 


Index. 


INJURY: 

action for injury to highway, 19. 
to highway, damages for, 145. 
penalties for, 146, 147. 

INTEMPERATE DRIVERS : 
not to be engaged, 151. 
when to be discharged, 152. 

K. 

KINGS COUNTY : 

commissioners of highways in, 215-217. 
improvement of highways in, 305. 

L. 

LABOR ON HIGHWAYS : 

abatement of tax for shade trees, 45. 
for watering trough, 47. 
for removal of fence, 62. 
for street lamps, 62. 
for using wide wagon tires, 63. 
amount of assessment, 37. 
anticipation of tax for sidewalks, 46. 
certificate of, 46. 
transfer of certificate, 47. 
appeals by non-residents, 41. 
assessment for unperformed labor, 58. 
list of unperformed labor, 58. 
collection of arrearages by supervisors, 59. 
assessment list delivered to overseers, 40. 

names omitted therefrom, 41. 
assessment of, how made, 37. 
assessment when village within town, 284. 
assignment to highway districts, 6. 
by Indians, 276. 
commutation of, 55. 
credit on private roads, 42. 
day’s labor, what it consists>f, 57. 
division of town into districts, 5. 





The Highway Law op New York. 


437 


Index. 


LABOR ON HIGHWAYS: 
exemption from, 37. 

officers of State Assylum for Idiots, 281. 
may be applied to a certain highway, 38. 
meetings of commissioners for assessment, 36. 
new assessments by overseers, 43. 
notice to work, 54. 

to non-residents, 55. 
occupant assessed instead of owner, 42. 
omissions of assessors corrected, 43. 
omission to work, may be excused by overseer, 58. 
overseers to give warning, 7. 
penalties for neglect to work or commute, 57. 
performance of, 54. 
reassessment in case of neglect, 43. 
state prison convicts, employment of, 315, 361. 
substitutes for, 57. 
teams and implements for, 56. 
tenant to deduct assessment, 42 
upon line of turnpike, 258. 
see, Tax. 

LABOR SYSTEM: 

see, System of Taxation. 

LAMPS: 

abatement of tax for, 62. 
lamp districts in town, 322. 

LAW OF THE ROAD: 

carriages to turn to the right, 149, 151. 
coossing of highway, 149-151, 271. 
right of way, 149, 151. 

LIST: 

in overseer’s return, 60. 
of inhabitants liable to labor, 36. 
of unperformed labor, 58. 




438 


The Highway Law of New York. 


Index. 


MACHINES: 

purchase of, for roads, 10. 


M. 


MILE-STONES: 

erection of, by highway commissioners, 9. 
by turnpike corporations, 250. 

MILITIA: 

see, National Guard. 

MONEY SYSTEM: 

see, System of Taxation. 

MONROE COUNTY: 

bicycle paths in, 351. 

MONUMENTS: 

erection of, as highway boundaries, 29. 


N. 

NATIONAL GUARD: 

exemption of, from toll, 113. 

NEWBURGH AND COCHETON ROAD: 
may be surrendered, 353. 


NON-RESIDENT LANDS: 


appeal from assessment by owner of, 41. 
list of, made by commissioners, 36. 
notice to work to owners of, 55. 

O. 


OATH: 


of highway commmissioner, 3. 
of overseer of highway, 30. 
of office generally, 172, 208. 
town officer may administer, 209. 


OBSTRUCTION: 
see, Highway. 


OCCUPANT: 

see, Labor on Highways. 




The Highway Law of New York. 


439 


Index. 


OFFICER: 

failure of, to act, 145. 
oath of, 172, 208. 

OVERSEERS OF HIGHWAYS : 

abatement of tax to be allowed by, 45, 47, 62, 63. 
anticipation of sidewalk tax, certificate of by, 46. 
appointment of, 6. 
assessment list delivered to, 40. 
collection of fines by, 29, 55. 

of commutation money by, 29, 55. 
compensation of, 33. 
duties of, generally, 29, 54. 
may acquire gravel for highways, 301. 
may excuse omission to perform labor, 54. 
monuments to be erected by, 29. 
new assessments by, 43. 
notice to non-residents, 55. 
notice to work given by, 54. 
noxious weeds to be cut by, 29. 
oath of, 30. 

opening of obstructed highways by, 30. 
penalties against, 31. 

collection of, 32. 
refusal to serve as, 7, 209. 
required to warn those liable to work, 7, 29. 
resignation of, 210. 
return of, 60. 

stones to be removed by, 29. 

to add names omitted from assessment list, 41. 

to deliver lists of inhabitants, 36. 

to give notice to remove weeds, 61. 

to make list of unperformed labor, 59. 

penalty for failure to make list, 59. 
to make requisition for teams and implements, 56. 
to recover penalty for neglect to work, 5/. 
undertaking of, 30, 210. 
vacancy in office of, 7, 210. 




440 


The Highway Law of New York. 


Index. 


where to be filed, 144. 

PENALTY : 

against overseer, 31, 59. 

collection of, 32, 59. 
for failiing to post ferry schedule, 161. 
for falling trees, 114. 
for fast driving on bridge, 143, 255, 270. 
for neglect to work or commute, 57. 
recovery of, 57. 

for obstructing or encroaching on highway. 112, 114. 

for running horses on highway, 113. 

for running toll-gate, 246. 

for unlawfully exacting toll, 113. 

recovery of, generally, 155. 

PIER: 

as highway, 102. 

PIPES: 

crossing highway, 235. 

drainage, sewer and water, in highway, 18. 
for heating purposes, 285. 
in highway outside of village, 218. 
the right to lay, 111. 

PLANK-ROAD : 

see, Turnpike. 

PRIVATE ROADS : 

credit on assessment for working, 42. 
for what purpose to be used, 130. 
proceedings to lay out, 124-131. 

R. 

RAILROAD : 

as highway, 103. 

corporation may lay tracks on highway, 272. 
duties of, on highway, 147. 
flagmen at crossing, 273. 




The Highway Law of New York. 


441 


Index. 


RAILROAD: 

highway crossing railroad, 91, 279. 
intersection of highways by, 271. 

consent of commissioners to, 279. 
rights of, in highway, 108, 109, 110. 
sign boards at crossing, 273. 
street railroad crossing steam railroad, 302. 

REAL PROPERTY : 

how assessed, for highway labor, 37, 38 

REPORT: 

of highway commissioners, 28. 
of overseers, 60. 

RICHMOND COUNTY: 

improvement of roads in, 292. 

RIGHT OF WAY: 

see, Law of the Road. 

RIVERS: 

application of Navigation Law to which, 263. 
as public highway, 103, 260. 
booms to be opened on notice, 260. 

penalty for failure, 261. 
dams and bridges on. how built, 260. 
marks on logs to be recorded, 262. 
passage of logs regulated, 344. 
persons prohibited from landing logs, 263. 
shutes and aprons for dams, 261. 
undertaking of person floating logs, 263. 

ROAD MACHINES: 
purchase of, 10. 


S. 

SHADE TREES: 
see, Trees. 

SHORE: 

as highway, 102. 




442 


The Highway Law of New York. 


Index. 


SIDEWALKS: 

anticipation of labor tax on, 46. 
certificate of, 46. 
transfer of certificate, 47. 
commissioners may authorize laying of, 44. 
driving vehicles on, 154. 
in villages, 229, 230. 
obstruction of, 117. 

STATE ROADS: 

attention of, 278. 

New York and Albany post road, 324. 

STEAM ENGINES: 

passage of, over highways, 147. 

STONE: 

to be removed by overseers, 29. 
not to be dumped on highway, 156. 

STONE CRUSHERS: 
custody of, 13. 
expense of, 317. 
materials for, 13. 
purchase of, 12. 

STRAYS: 

upon highways, provisions as to, 174. 
STREET: 

as highway, 102. 

STREET LAMPS: 
see, Lamps. 

STREET RAILROAD: 
see, Railroad. 

SUPERVISORS: 
see, County. 

SURVEY: 

when highway laid out, 71. 




The Highway Law of New York. 


443 


Index. 


SYSTEM OF TAXATION: 

labor system, defined, 48. 
money system, defined, 48. 
town may change system, 48. 

vote thereon, 48. 
when change to take effect, 48. 
annual tax under money system, 49. 

villages exempt therefrom, 49. 
county road system, adoption of, 50. 
expenses of, how paid, 51. 
issue of bonds, 52. 

jurisdiction of county roads, in whom, 52. 
proceeds of county bonds, 53. 


abatement of, for shade trees, 45. 
for removal of fence, 62. 
for street lamps, 62. 
for watering trough, 47. 

sum allowed a town charge, 214. 
additional, for highway improvement, 13, 206, 289. 
annual, under money system, 49. 

villages exempt therefrom, 49. 
anticipation of, for sidewalks, 46. 
certificate of, 46. 
transfer of certificate, 47. 
for street purposes in villages, 233. 
rebate of, on account of wagon tires, 63. 

see, Labor on Highways, System of Taxation. 


TEAMS: 

furnished by those liable to highway labor, 56. 

TELEGRAPH: 

right of line in highway, 110. 

TELEPHONE : 

right of line in highway, 110. 





444 


The Highway Law of New York. 


Index. 


TENANT: 

see, Labor in Highway. 

TIRES: 

see, Wagon. 

TITLE : 

short, of this act, 2. 

TOLL: 

abatement of, for watering trough, 281. 
exemption of National Guard from, 113, 245. 
gatherers, 246. 

penalty for running toll-gate, 246. 
rates of, for turnpikes and bridges, 245. 

TOLL-BRIDGE: 
see, Bridges. 

TOWN: 

action by, against commissioners, 26. 
division of, into highway districts, 5. 

into commissioner districts, 33. 
fire companies in, 212. 
lamp districts in, 322. 
liability of, for defects in highway, 20. 

may borrow money for highway purposes, 214. 
officers in Kings county, 215. 

supervisor not to receive highway moneys, 210. 
who to vote at town meetings, 207. 
wire fences may be erected by, 289. 
see, Bridges, System of Taxation. 

TOWN BOARD : 

audit of damages without action, 27. 
audit of expenses for laying out highway, 92. 
consent to extraordinary repairs, 14. 

auditing expense of, 15. 
dividing town into commissioner districts, 33. 






The Highway Law of New York. 


445 


Index. 


TREASURER: 

of highway commissioners, 2. 
undertaking of, 2. 


TREES: 

abatement of tax for planting, 45. 
commissioners may authorize planting, 44. 
penalty for falling, 114. 
prevention of mutilation of, 286. 
removal of fallen, 114. 
to whom they belong, 148, 
trimming of, in villages, 232. 

TURNPIKE (or Plank-road): 
as highway, 103. 
the use of highways for, 111. 
acquisition of, by county, 346. 
corporations, 238. 

use of highway by, 238-243. 

certificate of completion of road by, 244. 

erection of toll-gates by, 244. 

rates of toll, 245. 

toll gatherers, 246. 

penalty for running gate, 246. 

location and change of gates, 246. 

commissioners of highways as inspectors, 248. 

change of route by, 250. 

mile-stones to be erected by, 250. 

guide-posts to be erected by, 250. 

hoist-gate not to be erected by, 250. 

office of corporation, 251. 

consolidation of corporations, 251. 

surrender of road, 252, 257. 

exemption of road from taxation, 253. 

hauling logs over road, 254. 

encroachment of fences, 254. 

acts of directors prohibited, 255. 

actions for penalties, 255. 

proof of incorporation, 255. 




446 


The Highway Law of New York. 


Index. 


TURNPIKE (or Plankroad): 

when stockholders to be directors, 256. 
dissolution of corporation, 256. 
highway labor upon line of turnpike, 258. 
extension of corporate existence, 258. 
abatement of toll for watering trough, 281. 

UNDERTAKING: 

of treasurer of highway commissioners, 2. 
of highway commissioners, 3. 
of ferry corporation or owner, 160. 


USE: 

highway by, 101, 104. 

USES OF HIGHWAY : 
see, Highway. 

VEHICLES : 

to turn to the right, 147. 
see, Law of the Road. 

VILLAGE : 

exempt from tax under money system, 49. 

water pipes in highway outside of, 218. 

as separate highway district, 219. 

care of bridges by, 219, 220. 

dedication of streets, 220. 

street improvement in, 221-227, 287. 

changing grade of street or bridge, 228, 287. 

streets on boundary lines, 229. 

crosswalks in, 229. 

sidewalks in, 229, 230. 

cleaning streets in, 231. 

sprinkling streets in, 231. 

pavements in, how laid, 231. 

trimming trees in, 232. 

local assessments for streets, &c., 233. 

acquisition of land by, for parks, &c., 233. 

pipes in, for heating purposes, 285. 




The Highway Law of New York. 


447 


Index. 


W. 

WAGON: 

rebate of tax for using wide tires, 68. 

WATER COMMISSIONERS: 

highway commissioners as, 4. 

WATERING TROUGH : 

abatement of tax for, 47. 

sum allowed a charge upon town, 214. 
abatement of toll for, on turnpike, 281. 

WAY: 

by necessity, 104. 

WEEDS: 

cutting of, by overseers, 29. 
destruction of, by owner or occupant, 61. 
notice to renew, 61. 

town meetings to make provisions as to, 206. 







F 6 54 

























